Court File and Parties

CITATION: S.N.S. Industrial Products Limited v. Omron Canada Inc., 2017 ONSC 5469

COURT FILE NO.: CV-15-239 (Brantford)

DATE: 2017/09/14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: S.N.S. INDUSTRIAL PRODUCTS LIMITED, Plaintiff

AND:

OMRON CANADA INC., Defendant

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: John W. McDonald, for the Plaintiff Nicole Henderson, for the Defendant

COSTS ENDORSEMENT

[1] The parties have been unable to settle the issue of costs and have now delivered their written submissions on costs of the proceeding.

[2] The defendant seeks costs on a partial indemnity basis in the total sum of $91,766.46, comprised of fees in the sum of $77,785.50, HST on the fees in the sum of $10,112.12 and disbursements, inclusive of HST on taxable disbursements, in the sum of $3,868.84. The defendant, in its submissions, addressed various factors in Rule 57.01 of the Rules of Civil Procedure including the following:

(a) The amount claims and the amount recovered;

(b) The complexity of the proceeding;

(c) The importance of the issues;

(d) Conduct that tended to shorten or lengthen the proceeding;

(e) Refusal to admit what should have been admitted;

(f) The actual time spent, billing rate and experience of counsel; and

(g) Reasonable expectations of the unsuccessful party.

[3] The submissions of plaintiff’s counsel were brief, stating simply that his client is of the view that costs of $60,000 inclusive seems reasonable, and that his client is prepared to leave the final costs disposition to the discretion of the court.

[4] The plaintiff took no issue with the submissions of the defendant respecting the application of the relevant factors in Rule 57.01, nor did it take issue with the time spent or partial indemnity rates set forth in the defendant’s Bill of Costs.

[5] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan, [1999] O.J. No. 3707 (Ont. C.A.) at para. 24).

[6] Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).

[7] In terms of complexity, proportionality and expectations, it is noted that the plaintiff’s action involved claims for damages totalling $50,000,000, plus $10,000,000 in punitive damages and the defendant’s counterclaim sought payment of $430,409.28. It is also noted that the plaintiff’s Factum comprised some 80 pages, four times the maximum provided in the Regional Practice Direction in the absence of leave (no leave having been sought by the plaintiff in this case). This is indicative of the plaintiff’s view of the complexity of the issues.

[8] The plaintiff did not file its own Bill of Costs or Costs Outline which may have given insight into its reasonable expectations on the issue of costs.

[9] The plaintiff does not explain why $60,000 inclusive would be a reasonable sum to fix for the defendant’s costs. In the absence of any meaningful submission on costs from the plaintiff I find no basis for deviating from the amount sought by the defendant in its submissions and as set forth in its Bill of Costs.

[10] It is ordered that the plaintiff pay costs to the defendant in the total sum of $91,766.46 within thirty (30) days hereof.

D.A. Broad, J.

Date: September 14, 2017