CITATION: Swift v Allied Track Services, 2017 ONSC 7080

COURT FILE NO.: CV-16-564640

DATE: 20171128

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF the Arbitration Act , 1991 S.O . 1991, c. 17;

BETWEEN:

JEFFREY SWIFT, SUZANNE SWIFT AND DEBORAH JOHN FIRMIN, TRUSTEES, for and on behalf of the Trust known as THE 2012 JEFF SWIFT FAMILY TRUST, RODNEY SWIFT, ALAINE REIDPATH AND DEBORAH JOAN FIRMIN, TRUSTEES for and on behalf of the Trust known as THE 2012 ROD SWIFT FAMILY TRUST, JOHN SWIFT, DOREEN SWIFT, JEFFREY SWIFT, RODNEY SWIFT, and 2109123 ONTARIO INC.

Appellants

– and –“

ALLIED TRACK SERVICES INC.

Respondent

Jonathan Rosenstein, for the Appellants

Martin J. Henderson, for the Respondent

HEARD: WRITTENS SUBMISSIONS

COSTS ENDORSEMENT

DIAMOND J.:

[1] At the conclusion of my Endorsement dated November 1, 2017, I requested that the parties exert the necessary efforts to try and resolve the costs of the respondent’s motion to quash. Those efforts were ultimately unsuccessful, and I have now received and reviewed the parties’ respective costs submissions served and filed pursuant to a fixed schedule.

[2] The respondent was no doubt wholly successful on its motion. The respondent seeks costs of the proceeding on a partial indemnity basis in the all-inclusive amount of $14,483.01. The respondent argues that this proceeding was the appellants’ latest effort in their continuing pattern of delay through re-litigation of matters through appeals.

[3] For their part, the appellants do not take issue with the proposition that the respondent was successful, and therefore the appellants agree that there is no reason to depart from the general rule that costs follow the event. The appellants only take issue with the quantum of costs sought by the respondent on a partial indemnity basis.

[4] In my view, there is some merit to the appellants’ submission. The motion required the exchange of brief motion records, factums and books of authorities. There were no cross-examinations. The hearing itself was not very lengthy. In total, the respondent’s Costs Outline claims nearly 45 hours spent prosecuting the motion. This seems high, especially given that the majority of the evidence simply summarized the history of the litigation between the parties to date.

[5] As mandated by the Court of Appeal for Ontario in Boucher v. Public Accountants Council (Ontario) 2004 14579 (ONCA), I remain mindful of my obligation to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of the more successful party with the overall goal of fostering access to justice.

[6] Having regard to the results achieved, the reasonable expectations of the parties and the hours claimed by the respondent, in my view a fair and reasonable result amounts to the appellants paying the respondent’s costs of the motion on a partial indemnity basis in the all-inclusive sum of $10,000.00.

[7] Order accordingly.

Diamond J.

Released: November 28, 2017

CITATION: Swift v Allied Track Services, 2017 ONSC 7080

COURT FILE NO.: CV-16-564640

DATE: 20171128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JEFFREY SWIFT, SUZANNE SWIFT AND DEBORAH JOHN FIRMIN, TRUSTEES, for and on behalf of the Trust known as THE 2012 JEFF SWIFT FAMILY TRUST, RODNEY SWIFT, ALAINE REIDPATH AND DEBORAH JOAN FIRMIN, TRUSTEES for and on behalf of the Trust known as THE 2012 ROD SWIFT FAMILY TRUST, JOHN SWIFT, DOREEN SWIFT, JEFFREY SWIFT, RODNEY SWIFT, and 2109123 ONTARIO INC

Appellants

– and –

ALLIED TRACK SERVICES INC.

Respondent

COSTS ENDORSEMENT

Diamond J.

Released: November 28, 2017