Court File and Parties

COURT FILE NO.: 25860/12 DATE: 2018-08-13 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY Plaintiff – and – WEYERHAEUSER COMPANY LIMITED Defendant

Counsel: Marina E. Sampson and Aoife C. Quinn, for the Plaintiff Michael S. O’Neill and Robert MacRae, for the Defendant

HEARD: Written submissions

RASAIAH J.

REASONS FOR DECISION on costs

Overview

[1] Both parties are seeking costs following my decision made on a summary judgment motion brought by the defendant in this matter. They were unable to resolve the issue.

[2] The defendant states that it is arguably entitled to its costs on a substantial indemnity basis on the premise that the plaintiff acted unreasonably in denying specific, written, public and authenticated facts (pointing to the request to admit).

[3] Alternatively, the defendant states it should be entitled to partial indemnity costs for being partially or mostly successful.

[4] As a final alternative, the defendant suggests that the court could find that success was fully mixed and award costs in the cause to each party, fixed at $25,000, and that if the plaintiff is successful at trial on their claim for nuisance of strict liability, then they should ultimately receive compensation for their success in not having the full claim dismissed.

[5] The defendant suggests that if they are ultimately successful on those claims and/or suggesting that the claims are protected under section 50 of the Public Lands Act, they should ultimately be entitled to their costs of the motion.

[6] The plaintiff takes the position that the defendant is neither entitled to substantial indemnity nor partial indemnity costs; costs in the cause is not appropriate; and the plaintiff should be awarded costs of the motion. The plaintiff seeks its partial indemnity costs of the motion on the basis that as the responding party they successfully resisted part of the summary judgment motion relying on Freedom International Brokerage Company v. Anastakis.

[7] The plaintiff’s partial indemnity costs are submitted to be $19,827.66 inclusive of legal fees, HST and disbursements. In the circumstances, however, the plaintiff seeks reduced costs of $13,500, inclusive of legal fees, HST and disbursements.

Analysis

[8] I reviewed the submissions and law filed; and considered, the materials filed on the motion; the hearing of the motion; and my decision/reasons.

[9] In my view, the issues or some of the issues related to the main claims had some complexities.

[10] The defendant asserts that the substance of argument of the motion of the defendant was absolutely successful. Yet the defendants acknowledge that the claims of negligence were dismissed, but that the claims in nuisance and strict liability were not. The plaintiff submits that the defendant brought a motion seeking full summary judgment and that its notice outlined its relief as dismissing the action against it. I agree. The suggestion that negligence was the singular substance of the motion argued is not correct. This court did not accept that there were no genuine issues for trial. The defendants were granted partial summary judgment. I do not agree with the plaintiff’s assertion that the defendant submitted that the action was completely barred by section 50 of the Public Lands Act. That was not the court’s appreciation of the materials filed and or the arguments made. The wording used was “to the extent” that it applied, which, accordingly, in my view, required the court to consider that issue.

[11] While the factum did not concentrate on nuisance and strict liability, oral argument was made by the defendants in respect of the nuisance and strict liability at the hearing of the motion, and as such I do not find that no argument was advanced as asserted by the Plaintiff.

[12] While I do not agree that the number of witnesses and/or the length of trial are unaffected with the finding regarding negligence as asserted by the plaintiff, I do agree that the motion did not resolve the action. In addition, the progress of the action was affected forward by the summary judgment motion.

[13] It is in my view correct to state that a number of the grounds and arguments advanced by the plaintiff were accepted in disposing of the motion.

[14] However, in granting partial summary judgment, the court did rely on the defendant’s submissions. The court’s understanding of the submissions and the oral submissions of counsel, Robert MacRae, included submissions that the new culverts were installed as a direct result of the wash-out previous to the CN wash-out and performed in connection with the repair of English River Road during which the court was specifically referred to photographs by Mr. MacRae, and/ or Mr. O’Neill.

[15] At the end of the day, my view is that the defendant’s partial success, was just that and it was limited. The plaintiff successfully defended the motion on the other issues.

[16] As to party actions, the defendant more than once pointed to the request to admit in suggesting that there was unreasonableness on the part of the plaintiff in responding to it, including but not limited to denying truth of facts where the effect and operation of section 50 of the Public Lands Act. The plaintiff takes the position that there is no support in fact that its response to the request to admit was unreasonable, and further, that it had impact on the proceeding. I agree. In addition, there were a number of vague and non-specific requests drafted in a fashion it seemed more so to put forth theory of the case and seek admission on interpretation of law.

[17] I do not find that success was fully mixed. There were three main issues, negligence (application of the Public Lands Act), nuisance and strict liability. The defendant was successful on one.

[18] I do accept the plaintiff’s submission that its potential recoverable damages may be unchanged by the outcome of the summary judgment motion.

[19] I am satisfied on the basis of the above considerations that this is a case where I should exercise my discretion to order costs, and in this case to the plaintiff, keeping in mind all of the above considerations.

[20] For the above reasons, I am of the view that costs should neither be awarded on any scale or in the cause to the defendant or that it would have been appropriate in this case, the issue of the application of the Public Lands Act having been decided.

[21] Further, for the above reasons, I find that this is not a case for a no-cost award because it was the defendants who brought the motion and the plaintiff brought no cross motion.

[22] As to the costs requested, I have no concerns with counsel experience; counsel rates; and hours spent by counsel on the matter. In my view, the plaintiff seeks a reasonable amount of costs that the other party could reasonably expect to pay, and I accept, on review, that the plaintiff has backed out costs for work performed or expenses incurred which will ultimately benefit the plaintiff at the trial of this matter, such as, for example its expert reports or research with respect to its claims in nuisance and strict liability.

[23] I received no evidence satisfying me that the costs should not be ordered payable within 30 days.

[24] Based on all of the above, I hereby order costs to the plaintiff payable by the defendant in the amount of $10,000, inclusive of legal fees, HST and disbursements, payable within 30 days.

Rasaiah J.

Released: August 13, 2018

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: CANADIAN NATIONAL RAILWAY COMPANY - and – WEYERHAEUSER COMPANY LIMITED REASONS FOR decision on COSTS Rasaiah J.

Released: August 13, 2018