COURT FILE NO.: 90987/15 (OSHAWA)

MOTION HEARD: 2018 02 14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Coco Paving Inc.

v.

The Regional Municipality of Durham, The Regional Municipality of York, Covanta Durham York Renewable Energy Limited Partnership, Covanta Durham York Renewable Energy Ltd. and Courtice Power Partners, a joint venture comprising of Barton Malow Canada, Inc. and Kenaidan Contracting Ltd.

BEFORE: MASTER R.A. MUIR

COUNSEL: Anthony Scane for Courtice Power Partners, moving party Ian Katchin for Coco Paving Inc., responding party Hana Tariq for General Sprinklers Inc., responding party

SUPPLEMENTARY REASONS FOR DECISION - COSTS

[1] On February 14, 2018 I heard motions brought by the defendant Courtice Power Partners (“CPP”) for orders temporarily staying this action and several other related actions commenced by the plaintiffs Coco Paving Inc. (“Coco”) and General Sprinklers Inc. (“GS”).

[2] I released my reasons for decision on May 7, 2018. I granted the relief sought by CPP. I also requested written costs submissions. CPP and Coco have resolved their costs issues. I have now received and considered the costs submissions of the parties with respect to the motions in the GS actions.

[3] CPP argues that it was entirely successful and is entitled to costs. It asks for partial indemnity costs in the amount of $11,127.66. GS submits that the costs requested by CPP are excessive. Its costs outline identified partial indemnity costs of $7,107.14. It suggests that partial indemnity costs of $5,000.00 in favour of CPP are fair and reasonable in the circumstances.

[4] When dealing with costs, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] OJ No. 4495 (CA) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] OJ No. 2634 (CA) at paragraph 26. In Davies v. Clarington (Municipality), 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:

Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[5] I agree with GS. The GS motions involved a significant amount of overlap with the Coco motions. The materials delivered for the GS motions were relatively brief and straightforward. There were no cross-examinations on the affidavits filed for the GS motions. The fees requested also appear excessive from the perspective of the reasonable expectations of GS. GS would have sought $7,107.14 if it had been successful. Finally, most of CPP’s submissions during argument were directed to the Coco evidence.

[6] For these reasons, I have determined that a costs award in an amount closer to the GS costs outline is fair and reasonable in the circumstances. GS shall pay CPP’s costs of the GS stay motions on a partial indemnity basis fixed in the amount of $7,500.00, inclusive of HST and disbursements. These costs shall be paid by July 20, 2018.

Master R. A. Muir

Date: 2018 06 20