CITATION: Resolute Forest Products Inc. v. 2471256 Canada Inc. DBA Greenpeace 2017 ONSC 5383
COURT FILE NO.: CV-13-0164
DATE: 2017-09-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Resolute Forest Products Inc., Resolute FP US Inc., Fibrek General Partnership, Fibrek U.S. Inc., Fibrek International Inc., and Resolute FP Canada Inc., Plaintiffs (Responding Parties)
- and -
2471256 Canada Inc. DBA Greenpeace Canada, Richard Brooks and Shane Moffatt, Defendants (Moving Parties)
HEARD: August 10, 2017
BEFORE: Fitzpatrick J.
COUNSEL: A. Hamilton and C. Pendrith, for the Plaintiffs/Responding Parties
S. Shrybman and J. Goldblatt, for the Defendants/Moving Parties
JUDGMENT ON MOTION TO STAY PROCEEDINGS
[1] The moving parties, 2471256 Canada Inc. DBA Greenpeace Canada, Richard Brooks and Shane Moffatt (collectively, the “Canadian Greenpeace Defendants”) bring this motion to strike or stay the herein action brought against them (the “Canadian Action”) by the plaintiffs, Resolute Forest Products Inc., Resolute FP US Inc., Fibrek General Partnership, Fibrek U.S. Inc., Fibrek International Inc., and Resolute FP Canada Inc. (collectively, “Resolute”).
Background
[2] The background of this litigation has been set out in two decisions that I have released, arising from prior pleadings motions in this case (2015 ONSC 3863 and 2013 ONSC 5822). Those decisions were appealed to the Divisional Court (2016 ONSC 5398, 403 D.L.R. (4th) 121 and 2014 ONSC 3996). The background consists largely of recitations of the allegations in the pleadings and does not need repeating here. However, there is one important new development which the Canadian Greenpeace Defendants heavily rely upon as the basis for their current motion.
[3] On May 31, 2016, Resolute, along with a related corporate entity, Resolute FP Augusta, LLC (collectively the “U.S. Resolute Plaintiffs”), commenced an action in the United States District Court for the Southern District of Georgia, Civil Action File No. CV116-071 (the “U.S. Action”), asserting various claims against Greenpeace International (a.k.a. “Stichting Greenpeace Council”), Greenpeace, Inc., Greenpeace Fund, Inc., ForestEthics, Daniel Brindis, Amy Moas, Matthew Daggett, Rolf Skar, Todd Paglia, and John and Jane Does 1-20 (collectively the “U.S. Greenpeace Defendants”) for defamation, tortious interference with economic relations, and racketeering. The U.S. Action seeks damages of over $300,000,000.00.
[4] Resolute points out that the Canadian Greenpeace Defendants are not parties to the U.S. Action. This fact is not disputed by the Canadian Greenpeace Defendants.
[5] In their factum filed on this motion at para. 15, the Canadian Greenpeace Defendants assert that the causes of action pled in the U.S. Action are contraventions of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961-1968 (“RICO”), common law civil conspiracy, defamation, tortious interference with prospective business relations, tortious interference with contractual relations, and trademark dilution.
[6] Defamation and intentional interference with contractual relations are the two tortious actions commonly pled in the Canadian Action and the U.S. Action.
[7] In its factum filed on this motion at para. 7, Resolute asserts the U.S. Action involves a plea that the international Greenpeace organization is a “global fraud” that has engaged in racketeering activity across state lines in the United States contrary to RICO. The U.S. Action is about whether the parties named as defendants in that action are operating in the United States in a manner that violates the statutes and common law of that sovereign nation. It does not plead Canadian law nor does it name any Canadians as defendants.
[8] In August 2016, the U.S. Greenpeace Defendants were successful in their motion to temporarily stay the discovery process in the U.S. Action pending a motion to dismiss the action in its entirety. In May 2017, the U.S. Greenpeace Defendants were successful in moving to have the U.S. Action transferred from Georgia to the United States District Court for the Northern District of California. The U.S. Greenpeace Defendants have now moved to have the U.S. Action dismissed in its entirety. I was advised by counsel that that particular motion is to be heard on October 10, 2017.
Position of the Parties
[9] First and foremost, the Canadian Greenpeace Defendants argue this action should be temporarily stayed until the U.S. Action is dismissed or settled, or until judgment is rendered. In the alternative, the Canadian Greenpeace Defendants submit that their affidavit material demonstrates that this action should be permanently stayed as it has met the Farris test noted below. In the further alternative (although it appeared as the primary relief sought in the notice of motion), the Canadian Greenpeace Defendants ask that this action be dismissed as an abuse of process. Counsel for the Canadian Greenpeace Defendants acknowledge that this relief would a “greater challenge” on the evidence submitted.
[10] The Canadian Greenpeace Defendants submit that Resolute has determined to commence two different actions which have significant overlap. Although the Canadian Greenpeace Defendants are not defendants in the U.S. Action, the individual defendants in this action and the corporate defendant in this action are specifically named in the U.S. Action pleading as being part of the criminal enterprise against which the U.S. Resolute Plaintiffs seek damages. Certain publications which are the precise subject of this action are also placed in an appendix to the pleading in the U.S. Action as being representative of alleged additional misrepresentations concerning the U.S. Resolute Plaintiffs putative destructive logging practices.
[11] Despite its motion to dismiss in the U.S. Action, the Canadian Greenpeace Defendants submit it is likely both actions will continue thus causing prejudice to the Canadian Greenpeace Defendants by having to conduct two cases they assert arise from many of the same facts.
[12] Resolute argues that this action, as contrasted to the U.S. Action, involves different defendants, different causes of action, different laws and different jurisdictions. As such the defendants have not met any of the legal tests for the court to do anything other than dismiss the Canadian Greenpeace Defendants’ motion.
The Law
[13] Counsel in this matter did not dispute the legal principles applicable in this matter. The application of these principles was the focus of the argument. I quote from the factum of the moving party as to the law applicable to the matters at issue.
[14] Rule 21.01(3)(d) of the Rules of Civil Procedure provides that a defendant may move before a judge to have an action stayed or dismissed on the ground that the action is frivolous or vexatious or is otherwise an abuse of the process of the court.
[15] Canadian courts (as in the decision of Henry J. in Re Lang Michener et al. and Fabian et al., 1987 CanLII 172 (ON SC), 59 OR (2d) 353 at pp. 358-359, 37 DLR (4th) 685 have consistently identified the characteristics of proceedings that are frivolous or vexatious or otherwise an abuse of the process of the court as including the following:
i) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
ii) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented;
iii) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceedings; and
iv) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action.
[16] In Canam Enterprises Inc. v. Coles, 2000 CanLII 8514 (ON CA), 51 OR (3d) 481 at para. 31, 194 DLR (4th) 648, while discussing the inherent power of the court to invoke the doctrine of abuse of process, Finlayson J.A. for the majority stated:
Abuse of process is a discretionary principle that is not limited by any set number of categories. It is an intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy.
[17] Section 106 of the Courts of Justice Act, R.S.O. 1990, c. C-43 provides:
A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.
[18] Section 138 of the Courts of Justice Act provides:
As far as possible, multiplicity of legal proceedings shall be avoided.
It is settled law that courts have inherent jurisdiction to control the litigation process in a fair and equitable way, including to stay proceedings on a permanent or temporary basis, where related proceedings are brought in another jurisdiction (Hollinger International Inc. v. Hollinger Inc., [2004] O.J. No. 3464, 11 C.P.C. (6th) 245). A judge has the discretion to grant a stay of Ontario proceedings because of the existence of foreign proceedings where it is just to do so (Williams v. 963659 Ontario Ltd., [2004] O.J. No. 5789 (Div. Ct.) at para. 28).
[19] To grant a permanent stay, the court must find that continuing the claim would cause substantial prejudice or injustice to the defendant (not merely inconvenience and expense) and that it would not cause an injustice to the plaintiff. An injustice will result where the continuance of the action would be oppressive or vexatious to the defendant or would be an abuse of process of the court in some other way.
[20] Factors to be considered in determining prejudice include:
(i) the likelihood and effect of the two matters proceeding in tandem in two different forums;
(ii) the possibility and effect of different results;
(iii) the potential for double recovery; and
(iv) the effect of possible delay.
[21] In Farris v. Staubach Ontario Inc., 2004 CanLII 11325 (ONSC), Lederman J. stated at paras. 15 and 16:
- A stay of proceedings should only be ordered in the clearest of cases, where the party seeking the stay can clearly demonstrate that (1) continuing the action would cause substantial prejudice or injustice to the moving party (not merely inconvenience and expense), and (2) the stay would not cause an injustice to the responding party . . . :
A stay of proceedings is never granted as a matter of course. The matter is one calling for the exercise of judicial discretion in determining whether a stay should be ordered in the particular circumstances of the case. The power to stay should be exercised sparingly, and a stay will only be ordered in the clearest of cases. In order to justify a stay of proceedings, two conditions must be met, one positive, one negative: (a) the defendant must satisfy the court that the continuance of the action would be oppressive or vexatious to him or would be an abuse of the process of the court in some other way; and (b) the stay must not cause an injustice to the plaintiff. On both the burden of proof is on the defendant. Expense and inconvenience to a party or the prospect of the proceedings being abortive in the event of a successful appeal are not sufficient special circumstances in themselves for the granting of a stay.
- Factors to be considered in determining the prejudice include: the likelihood and effect of two matters proceeding in tandem in two different forums; the possibility and effect of different results; the potential for double recovery; and the effect of possible delay.
[22] The criteria for granting a temporary stay of proceedings pending the resolution of a foreign proceeding consider whether the cases share the same factual background, whether issuing a temporary stay will prevent unnecessary and costly duplication of judicial and legal resources, and whether the temporary stay will result in an injustice to the party resisting the stay. Hoy J. in Catalyst Fund Limited Partnership II v. IMAX Corp., 2008 CanLII 48809 (ON SC), 92 O.R. (3d) 430 at para. 21 quoted Farley J. in Hollinger when she described the test for a temporary stay as follows:
It appears that temporary stays pending resolution of a foreign proceeding are typically granted when the foreign proceeding would ‘substantially reduce the issues to be determined’ or if success in the foreign proceeding could render the local proceeding ‘substantially moot’ or otherwise have a ‘material’ impact on the outstanding issues in the case. Farley J. indicated that the granting of a stay is discretionary and should be governed by the equities of the situation. He pointed to whether there is substantial overlap of issues in the two proceedings, whether the cases share the same factual background, whether issuing a temporary stay will prevent unnecessary and costly duplication of judicial and legal resources and whether the temporary stay will result in an injustice to the party resisting the stay as some of the factors to be considered by the court in exercising its discretion in issuing a temporary stay pending the resolution of another proceeding.
[23] The criteria that make a permanent stay appropriate are reconsidered in respect of whether a temporary stay should be imposed, albeit with a lower threshold.
Disposition
[24] In my view, the best argument for granting any relief to the Canadian Greenpeace Defendants on the basis of the material before the court now, lies in their request for a temporary stay of the Canadian Action. Accordingly, I will deal first with the argument for dismissal of the action as an abuse of process, followed by a discussion of the arguments for a permanent stay and concluding with my disposition of the request for a temporary stay pending the outcome of the U.S. Action.
[25] With respect to all three heads of relief sought by the Canadian Greenpeace Defendants, I find that the fact that the Canadian Greenpeace Defendants are not parties to the U.S. Action is of critical importance to the disposition of this motion. This fact impacts each aspect of the Canadian Greenpeace Defendants’ motion differently in ways which I will discuss.
Stay as an Abuse of Process
[26] I am not persuaded that the Canadian Action is an abuse of process. I do not find that the conduct of Resolute constitutes a vexatious action such that it would be appropriate to deny it the right to proceed with this case.
[27] I do not accept the argument that Resolute has engaged in forum-shopping by commencing and maintaining this action in Ontario. In its factum, the Canadian Greenpeace Defendants made much of the apparent advantage to Resolute to having commenced this action in Ontario as opposed to Quebec. In my view, this is an argument that could have been made by the Canadian Greenpeace Defendants when they were first served with this claim sometime in 2013. The fact that this argument has been reserved to now, four years later, lessens its force to a great degree. Arguments about venue should be raised at the earliest opportunity so that unnecessary steps are not taken if indeed a plaintiff has picked an inappropriate place to commence an action. There have been at least three “big motions” heard in this case thus far. This matter is being case-managed. Therefore significant judicial resources have been dedicated to this matter to date.
[28] The fact that the Canadian Greenpeace Defendants have assets in Ontario, the fact that the personal defendants were resident in Ontario at the time the claim was commenced and the fact that Resolute conducts business in Ontario, including operating a mill here in Thunder Bay, is sufficient to persuade me Ontario is an appropriate place to have this matter adjudicated.
[29] It is trite law that a plaintiff’s choice of venue is not to be lightly disregarded.
[30] I find the fact that the U.S. Action has been commenced by the Resolute U.S. Plaintiffs does not constitute vexatious behaviour by Resolute. The parties in both actions are different. While they may be related, I do not see how when parties are legally not the same entities, suing one group in one place and another group in another place can be said to constitute vexatious behaviour. Also critical to my thinking on this point is the fact that the U.S. Greenpeace Defendants are seeking to completely stay the U.S. Action. In the cases I was provided concerning abuse of process (such as Re Lang Michener), there was an underlying assumption that litigation was being conducted somewhere, and it was abusive to allow prosecution of the same case somewhere else or after the fact. That is just not the factual matrix we are dealing with in this matter.
[31] I did not have any particulars of the argument that will be made before the U.S. District Court in October. The argument may well echo the abuse of process arguments made before me. It will be up to the American court to deal with that. It is instructive that the American court has already issued orders temporarily staying a discovery process.
[32] The affidavit material filed by the Canadian Greenpeace Defendants included an expert opinion by an American lawyer, Ms. Pringle. She was asked to provide her opinion on a number of questions, the most significant of which was the question of whether the American court could make a determination that the Canadian Greenpeace Defendants violated American law even though they are not defendants. She was also asked to opine on what would be the consequences of such a decision. In her affidavit, she states that the U.S. Action could determine that the Canadian Defendants violated American law. However, this is not a matter at issue in the Canadian Action. It is an entirely different matter involving American law.
[33] Ms. Pringle did outline non-monetary adverse impacts that could result for the Canadian Greenpeace Defendants if the U.S. Resolute Plaintiffs are successful in the U.S. Action. In my view, this aspect of her opinion evidence is pure speculation. It was of no assistance to the court nor was it sufficient for me to find that Resolute is acting in a vexatious manner. A finding of vexatious behaviour to the degree that would cause an action to be dismissed without a determination on the merits calls for more than speculative evidence. Again, American law is at issue in the U.S. Action and Canadian law is at issue in the Canadian Action. Ms. Pringle did not opine on how the law was the same such that the continuation of both actions could lead to different findings applying similar laws.
[34] Ms. Pringle did opine that if the U.S. Action continued, allegations against the Canadian Greenpeace Defendants would be determined to be true or false. This is one place where there is clear overlap between the two actions. However, it was not proven on the materials before me that the outcomes of any true or false decisions would lead to differing results such that it could be said pursuit of both actions by Resolute represents vexatious behaviour.
[35] What was not subject to any speculation from the material before me is the proposition that an American court has no ability to make any monetary findings against the Canadian Greenpeace Defendants because they are not parties to the U.S. Action. The possibility of having to pay a judgment might be considered by some as constituting something that would be “oppressive” although that result can be said to apply to all civil actions. However, in this case, the Canadian Greenpeace Defendants have no risk of a monetary judgment being made against them from the U.S. Action whatsoever.
[36] Ms. Pringle was asked about the measure of damages recoverable in the U.S. Action for claims of intentional interference with both business relations and contractual relations. I agree with the argument made by Resolute that it was telling that her opinion speaks only to the U.S. Greenpeace Defendants. It skipped the fact that there is no risk to the Canadian Greenpeace Defendants of an award of damages being made against them.
[37] According to the evidence obtained on the cross-examination of Ms. Vital, who supplied an affidavit for the moving party on this motion, to date the Canadian Greenpeace Defendants have had no demands made upon them for documentary discovery in the U.S. Action. In other words, they have not had to make any effort or expend any money in regard to the conduct of the U.S. Action so far.
[38] The affidavit material filed by the Canadian Greenpeace Defendants on this motion is not sufficient for me to find that the U.S. Action and the Canadian Action have been commenced for purposes other than the assertion of legitimate rights. The issues in both have not been decided elsewhere. It is not plain and obvious that the Canadian Action cannot succeed. It is significant to me that the Canadian Greenpeace Defendants have previously tried and failed to have the portion of the Resolute pleading relating to a claim for intentional interference with economic relations struck on the grounds that it discloses no reasonable cause of action. In that motion it conceded that the defamation claim could continue. In the disposition of the appeal of the ruling of the Divisional Court that upheld that particular motion dismissal, the Court of Appeal noted “the statement of claim is dated May 22, 2013 and this matter should move forward to the next steps”.
[39] Vexatious behaviour is sometimes characterized as attempting to prosecute the same action in two places or attempting to relitigate an issue that has been decided elsewhere. In my view, this is not what is occurring here. The Canadian Action was commenced well before the U.S. Action. A duplicative action is generally the one that is commenced second in time, excepting the case where a party could commence the same action in two different venues on the same day. While principles from the case law clearly direct courts to guard against allowing duplicative actions from proceeding, there first has to be a finding that indeed the actions are duplicates.
[40] As the defendants in both actions are different I cannot say that the actions are duplicates. In this case, it seems to me even in the event of a finding that the actions are duplicative (which I do not find), Resolute has the right to pursue the Canadian Greenpeace Defendants in some forum. As the Canadian Action came first in time it would have a natural priority to proceed, particularly in the face of an attempt by the defendants in the U.S. Action to try to stop that matter from going ahead at all.
[41] Principles set out in the case law like Re Lang Michener dealing with abuse of process allegations, cite a problem that arises where a matter has already been litigated and abuse is prevented by imposing a stay on the “second try” or the “do-over”. In my view, the Canadian Action is a “first try”. The Canadian Greenpeace Defendants do not take issue that Resolute has the right to have its defamation claim and claim for intentional interference with economic relations tried somewhere. Having brought a motion to dismiss the U.S. Action, their arguments to dismiss or stay this action lose a great deal of force.
[42] I accept that, in bringing this action in 2013, Resolute was not acting in a vexatious fashion. On the material before me I do not find that the decision to commence the U.S. Action in 2016 was vexatious. While I am clearly able to review the history of allegedly duplicative or vexatious actions, it seems to me that both matters are in their infancy despite the wide scope presented by the pleadings in the Canadian Action. The historical lens is one which works best when there is a real history to observe. At this point, neither the U.S. Action nor the Canadian Action have evolved sufficiently nor have findings been made such that I can say, looking at the whole history of the matter, that a pattern of abusive or vexatious conduct emerges. I accept the argument made by Resolute on this motion that the U.S. Action involves different defendants, different causes of action, different laws and different jurisdictions. In my view, Resolute’s conduct in continuing the Canadian Action cannot be said to be oppressive or vexatious. I would not exercise my discretion to stay the Canadian Action as an abuse of process. This aspect of the motion is dismissed.
Permanent Stay Due to Prejudice or Potential Prejudice to the Canadian Greenpeace Defendants
[43] Granting the motion on this basis would require an exercise of discretion relying on the authority of s. 106 of the Courts of Justice Act. I decline to exercise my discretion on this basis for the following reasons.
[44] The American Greenpeace Defendants are in the process of trying to permanently stop the U.S. Action. Also, despite the assertion on this motion that Resolute has asked for a determination in the U.S. Action that the Canadian Greenpeace Defendants have violated American criminal law and civil rules, this is not what is factually or legally at issue in the Canadian Action. Even if there is a possibility of overlap on some factual questions, fundamentally two different courts will be tasked with applying their own sovereign laws in respect of two distinct and different sets of defendants.
[45] I am not satisfied on the material before me that the Canadian Greenpeace defendants will be prejudiced to the extent they argue, particularly in the face of the fact that to date they have not been asked to participate in the U.S. Action discovery process and the U.S. Action is currently at risk of being permanently stayed. I do not agree that Resolute is seeking “two kicks at the can”. This metaphor works if there is only one “can”. Here we have two “cans” as represented by the different defendants and the different laws at issue in Canada and the United States.
[46] At most, the material indicates that the Canadian Greenpeace Defendants are concerned with speculative inconvenience and expense going forward. This is most clearly evidenced by the fact that no discovery requests from the U.S. Action have been received to date.
[47] I am also satisfied by the expert affidavit evidence tendered by Resolute on this motion that the possibility for double recovery will be addressed by the “single satisfaction” rule. Further, recovery at this stage of both pieces of litigation seems to me to be a highly speculative proposition. In the Canadian Action, the parties have not even exchanged documents. This action is far away from any possibility of recovery that would in any way provide me with a reasonable basis to permanently stay the matter now.
[48] In some respects I see the argument for a permanent stay to be the other side of the abuse of process coin. I return to the reasons I set out above concerning the argument that this action constitutes an abuse of process. My reasons have applicability on this issue as the practical result requested is the same. The Canadian Greenpeace Defendants have not made out a clear case for a stay in my view. The fact that the defendants are different is conclusive. In my view, Resolute has the right to pursue its claim in some venue. It started here first. The only logical basis for a stay of the Canadian Action disappears if the U.S. Action is not stayed. That has yet to be determined. As it is speculative at this point, it militates against exercising my discretion in favour of the Canadian Greenpeace Defendants at this stage in the litigation. The material before me suggests some factual overlap. However, as the defendants are different in the two actions, I do not find that the same actions, allegations and conduct are at issue in both actions to the degree necessary to exercise my discretion to permanently stay the Canadian Action. There clearly is a possibility of differing findings about the same publications in the two actions. However, those findings will not arise solely because two different adjudicators are looking at the same thing, which is a good reason to stay one proceeding. The difference will arise because different laws, in different countries are being applied to facts related to different defendants. In my view, this does not make this case suitable to be permanently stayed.
[49] While the Canadian Greenpeace Defendants complain about Resolute’s litigation strategy and cry foul for being put to the expense of productions, they are going to have to do it somewhere and sometime to respond to Resolute’s claims. The Canadian Greenpeace Defendants are part of a sophisticated organization. It has substantial resources. It has sufficient resources to pay for print advertisements in two Canadian daily papers seeking to persuade Resolute to discontinue its U.S. Action. There is no basis for a finding that this action meets the test of substantially inconveniencing or prejudicing the moving party.
Temporary Stay
[50] I am not convinced that the Greenpeace Canadian Defendants have passed the admittedly lower threshold for a temporary stay set out by Farley J. in Hollinger. In my view, on the material before me, I cannot say that resolution of the foreign proceeding is going to substantially reduce the issues to be determined in the Canadian Action. The U.S. Action is substantially broader than the Canadian Action. It is unclear to me how findings made against the Canadian Greenpeace Defendants will come to apply in Canada when those defendants are not parties to the U.S. Action. Whether the U.S. Action will not continue remains to be determined. Issuing a temporary stay will cause prejudice to Resolute in the form of further delay to this action. In argument, counsel for Resolute raised the spectre of an administrative Rule 48.14 dismissal coming up in 2018 as this action was started in 2013. That issue will be dealt with in 2018. At this point, the parties have not been able to agree to a discovery plan. It is the subject of a separate motion. A temporary stay would unnecessarily delay this process.
[51] On the materials filed I can see there is some overlap but it is not substantial to the degree that would make a temporary stay appropriate.
[52] As it stands now, the only ongoing legal costs involve the production of documents. There is no question that the U.S. Action appears to call for production on a broader scale. However, discovery is stayed in that action. I cannot say that issuing a temporary stay will prevent unnecessary and costly duplication of judicial or legal resources. As noted above, the Greenpeace Canadian Defendants will be required to produce documents to respond to some claim. The Canadian Action was started first. It has been going on for almost four years. The Divisional Court and the Court of Appeal have had two separate looks at the pleadings in this matter. They have withstood that review in the main. I am not prepared to say the equities favour a temporary stay.
[53] For all these reasons, the within motion is dismissed with costs payable by the moving party to Resolute forthwith.
Costs
[54] During argument I asked, for an estimate from counsel of the costs requests that the respective parties would be making on conclusion of the motion.
[55] In general, I found the partial indemnity cost position of the moving party to be the more reasonable of the two positions. Counsel for the Canadian Greenpeace Defendants suggested a range of $15,000 to $20,000 all-inclusive to be appropriate. This estimate assumes a deduction would be applied as Ms. Vital was cross-examined by counsel for Resolute and Rule 39.02(4)(b) provides that Resolute will pay the partial indemnity costs of that process unless the Court orders otherwise. This estimate also takes into account the costs of the companion motion related to a discovery plan which I will deal with in a separate endorsement. I agree that one cost award in this matter will be sufficient to also deal with the costs in the related motion dealing with production of documents.
[56] I appreciate that Resolute had to pay a rather large disbursement to obtain the expert opinion it utilized in responding to the motion. This cost was more than twice what I consider to be a reasonable partial indemnity costs award for the entire motion. The disbursement cost for the expert retained by the moving party was an instructive contrast.
[57] In light of these comments, if counsel cannot resolve the issue of costs they may make further submissions in writing, not to exceed two pages double-spaced. Any submissions are to be received on or before September 29, 2017, in default of which costs will be deemed to have been settled.
_______”original signed by”
The Hon. Mr. Justice F.B. Fitzpatrick
DATE: September 11, 2017
CITATION: Resolute Forest Products Inc. v. 2471256 Canada Inc. DBA Greenpeace 2017 ONSC 5383
COURT FILE NO.: CV-13-0164
DATE: 2017-09-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Resolute Forest Products Inc., Resolute FP US Inc., Fibrek General Partnership, Fibrek U.S. Inc., Fibrek International Inc., and Resolute FP Canada Inc., Plaintiffs (Responding Parties)
- and -
2471256 Canada Inc. DBA Greenpeace Canada, Richard Brooks and Shane Moffatt, Defendants (Moving Parties)
BEFORE: Fitzpatrick J.
COUNSEL: A. Hamilton and C. Pendrith, for the Plaintiffs/Responding Parties
S. Shrybman and J. Goldblatt, for the Defendants/Moving Parties
JUDGMENT ON MOTION TO STAY PROCEEDINGS
Fitzpatrick J.
DATE: September 11, 2017
/sab