Court File and Parties

COURT FILE NO.: C-9468/06

DATE: 2018-04-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Air Wilga Inc., Plaintiff

AND:

Orenda Recip Inc., Orenda Aerospace Corporation and Magellan Aerospace Company

BEFORE: The Honourable Mr. Justice Robert G.S. Del Frate

COUNSEL: Richard Pharand, for the plaintiff

Matthew Halpin, for the defendants

HEARD: Written Submissions

ENDORSEMENT ON COSTS

[1] The plaintiff seeks its costs as a result of successfully defending a motion brought by the defendants seeking to dismiss its claim because of delay. As such, it seeks costs of various amounts depending on the scale of costs that I feel is appropriate under the circumstances. The amounts vary and range from $45,330 on partial indemnity basis to $75,550 on a total indemnity basis.

[2] The plaintiff submits that its counsel Mr. Pharand has required 62 hours at $500 per hour. Its co-counsel Mr. Fortin has required 99 hours at $450 per hour. Total of 161 hours.

[3] The defendants submit that the amount claimed by the plaintiff is totally unrealistic. Further, they submit that the court should consider awarding no costs because the motion was required in view of the lengthy delay in prosecuting this particular action. On the other hand, should costs be awarded, then partial indemnity costs of $19,763.40 should be considered. This is the amount that the defendants would have requested had it been successful in its application.

[4] Costs are discretionary and in the ordinary course of litigation, costs follow the result. Costs sanctions are necessary to prevent parties from taking steps that may not be necessary in advancing the action.

[5] Although I appreciate why the defendants would have brought this motion, I am not convinced that it was all that necessary. This action has been outstanding for a considerable period of time and if the defendants had been that concerned, then they had the opportunity of bringing this motion at a much earlier date. Also, the matter could have been set down for trial by the defendants even though the onus is on the plaintiff. In my view, costs should be awarded to the plaintiff.

[6] The defendants make valid submissions that the amount being claimed by the plaintiff is unreasonable. I agree with that contention.

[7] First, there is no reasonable explanation as to why 161 hours would have been required by two senior lawyers for the preparation of this type of motion. A lot of the work in preparing the materials and doing the research could have been done by personnel other than senior counsel, especially if the rates of $500 and $450 per hour are being claimed. The defendants did use much junior assistance.

[8] Second, no detailed dockets substantiating all of the hours were filed. The plaintiff at no time filed a costs outline of what it reasonably would have expected had it been successful.

[9] Under the circumstances, I accept the submissions of the defendants that costs ought to be awarded in the sum of $19,763.40 plus HST of $2,569.24.

[10] There seems to be no issue on the disbursements and accordingly disbursements of $1,614.46 are awarded as well.

[11] The plaintiffs are awarded total costs, disbursements and HST of $23,947.10

[12] Order to issue as per reasons.

The Honourable Mr. Justice Robert G.S. Del Frate

Date: April 9, 2018