Court File and Parties

COURT FILE NO.: CV-15-5333512 DATE: 20180921 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

WORSLEY RUSHOLME LIMITED Plaintiff – and – IMPERIAL OIL, A PARTNERSHIP OF IMPERIAL OIL LIMITED AND MCCOLL-FRONTENAC PETROLIUM INC., BY ITS MANAGING PARTNER IMPERIAL OIL LIMITED, AND AMEC FOSTER WHEELER AMERICAS LIMITED Defendants

Counsel: Erik Sherkin for the Plaintiff Nancy Roberts and Mary Angela Rowe for the defendant, Imperial Oil, a partnership of Imperial Oil Limited and McColl-Frontenac Petrolium Inc., by its Managing Partner Imperial Oil Limited No one appearing for the defendant AMEC Foster Wheeler Americas Limited

HEARD: August 30, 2018

Before: FAVREAU J.

Introduction

[1] The plaintiff, Worsley Rusholme Limited ("Worsley") purchased a property from the defendant, Imperial Oil, a partnership of Imperial Oil Limited and McColl-Frontenac Petrolium Inc., by its Managing Partner Imperial Oil Limited ("Imperial Oil") which was previously home to an Esso gas station. During the course of excavating the property for the purpose of building a condominium complex, Worsley discovered petroleum contamination on the property. Worsley claims that Imperial Oil is responsible for causing the contamination or alternatively, that the defendant AMEC Foster Wheeler Americas Limited ("AMEC"), which remediated the property prior to the sale, is responsible for misrepresenting that the property was remediated.

[2] Imperial Oil seeks summary judgment against Worsley on the basis that the release in the agreement of purchase and sale between the parties precludes any claims of any kind related to environmental contamination of the property.

[3] For the reasons that follow, I agree with Imperial Oil. The release is very broad, and clearly encompasses the claim advanced by Worsley in this action. Under the circumstances, there is no triable issue and this is an appropriate case for granting partial summary judgment because doing so will significantly reduce the scope of the remaining action against AMEC and there is no risk of inconsistent findings between this decision and the remaining action against AMEC.

Background facts

The property and agreement of purchase and sale

[4] Worsley's claim arises from the purchase of a property located at 998 College Street, Toronto. The property was the site of a gas station until 2004.

[5] Imperial Oil decommissioned the gas station in 2004, at which time the buildings on the property were demolished and the petroleum handling equipment was removed.

[6] Given the property's prior use as a gas station, Imperial Oil was aware of potential residual environmental contamination. In 2004, Imperial Oil retained AMEC to investigate and, if necessary, remediate the property. AMEC's investigation did identify hydrocarbon contamination in and around the property. AMEC conducted remediation activities, which the defendants claim were completed in 2010.

[7] As part of its work, AMEC prepared a Record of Site Condition pursuant to the Environmental Protection Act, R.S.O. 1990, c.E.19, that was filed by Imperial Oil on Ontario's Environmental Site Registry. The Record of Site Condition described the conditions of the site, including a statement that there was no evidence of soil contamination that would preclude residential development on the site.

[8] In 2011, Longo Development Corporation ("Longo") made a successful bid to purchase the property. Longo subsequently incorporated Worsley for the purpose of purchasing and developing the property. Worsley is therefore the owner on title and the plaintiff in this action.

[9] The parties entered into an agreement of purchase and sale, which was signed by Worsley on June 30, 2011, and by Imperial Oil on August 2, 2011 (the "APS"). The APS contains a number of provisions releasing Imperial Oil from liability in relation to environmental matters. These provisions and their effect are discussed more fully below in the analysis section of these reasons.

[10] As part of the APS, on October 31, 2011, Imperial Oil also provided a Comfort Letter to Worsley that addressed issues of liability for environmental contamination on adjoining properties. The content of the Comfort Letter and context in which it was signed are at issue on this motion, and are also discussed more fully below in the analysis section of these reasons.

The claim and defences

[11] Following the sale of the property, Worsley worked on developing the property for the purpose of building a condominium complex. Worsley claims that, in 2014, it discovered the presence of petroleum hydrocarbon contamination on the property in the context of excavation.

[12] On July 30, 2015, Worsley commenced this action against Imperial Oil and AMEC. Worsley's action against the defendants is based on two alternative theories of liability, which are as follows:

a. Either AMEC is liable on the basis that it negligently misrepresented that there was no contamination on the property in the Record of Site Condition it prepared for Imperial Oil that was filed on the Environmental Site Registry; or b. Imperial Oil is liable on the basis that the contamination was caused by the remigration of contaminants from an adjoining property that occurred after the closing.

[13] In argument, counsel for Worsley agreed that this is a proper characterization of its claim against Imperial Oil. It does not claim against Imperial Oil for any contamination that may have been present on the property before closing. The rationale for this approach is addressed below in the analysis.

[14] Both defendants are represented separately and have filed separate statements of defence. In its defence, Imperial Oil takes the position that Worsley has released any right to sue in relation to any kind of contamination on the property, including contamination that occurred after closing due to the remigration of contaminants. AMEC defends on the basis that the Record of Site Condition contains disclaimers precluding Worsley's action and that, in any event, AMEC was not negligent in its remediation of the property. There are no crossclaims between Imperial Oil and AMEC.

Motion for summary judgment and positions of the parties

[15] Imperial Oil seeks summary judgment on the basis that the APS between the parties precludes Worsley's claim. In particular, Imperial Oil argues that the releases in the APS, including the terms of the Comfort Letter, release Imperial Oil from any claims based on environmental contamination, including contamination caused by the remigration of contaminants following closing of the sale. Imperial Oil also argues that this is an appropriate case for partial summary judgment because there is no risk of inconsistent findings given that Worsley's claim is based on alternative theories of liability and that judgment in its favour would have the effects of shortening and simplifying the balance of the action.

[16] In response to the motion, Worsley argues that the Comfort letter was meant to allow it to bring this claim against Imperial Oil. Worsley asserts that, prior to closing, it became aware that a neighbouring property owner had an outstanding claim for contamination against Imperial Oil and that the Comfort Letter was meant to allow Worsley to make a claim against Imperial Oil for contamination on the property that resulted from the remigration of contaminants onto the property after closing. Worsley also argues that partial summary judgment is not appropriate in this case because the parties have not yet participated in discoveries.

[17] AMEC did not participate in the motion nor did it take a position on the motion.

Test on a motion for summary judgment

[18] Under rule 20.04(2) of the Rules of Civil Procedure, summary judgment is to be granted if the Court is satisfied that there is no genuine issue requiring a trial.

[19] As set out in Hryniak v. Mauldin, 2014 SCC 7, at para. 49, there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process. This is the case when the process: "(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result."

[20] On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based on the evidence before him or her without using the fact-finding powers in rule 20.04(2.1). If there appears to be a genuine issue requiring a trial, rule 20.04(2.1) permits the motion judge, at his or her discretion, to: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the "interest of justice" for these powers to be exercised only at trial: Hryniak, at para. 66. The motion judge is also permitted to use the expanded powers under rule 20(2.2) to direct procedures such as a mini-trial, rather than a full trial.

[21] The parties may not rely on the prospect that additional evidence may be tendered at trial; parties must put their best foot forward: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (Ont. S.C.J.), at para. 26, aff'd 2014 ONCA 878 (Ont. C.A.), leave to appeal to SCC refused, [2015] S.C.C.A. No. 97 (S.C.C.).

[22] As held by Perell J. in Levac v. James, 2016 ONSC 7727, at para. 132:

Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial: Dawson v. Rexcraft Storage & Warehouse Inc., [1998] O.J. No. 3240 (Ont. C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 18 O.R. (3d) 481 (Ont. C.A.); Papaschase Indian Band No. 136 v. Canada (Attorney General), 2008 SCC 14, at para. 11. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) (3d) 423 (Ont. Gen. Div.), aff'd [1007] O.J. No. 3754 (Ont. C.A.).

[23] When considering whether it is in the interest of justice to grant summary judgment, in Hryniak, at para. 60, the Supreme Court addressed circumstances such as in this case where one party, but not all parties, brings a motion for summary judgment:

The "interest of justice" inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.

[24] Post-Hryniak, the Court of Appeal for Ontario has cautioned against granting partial summary judgment except where there is "no risk of duplicative or inconsistent findings at trial and that granting summary judgment [is] advisable in the context of the litigation as a whole": Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 6319 at para. 4. In Hamilton (City) v. Their + Curran Architects Inc., 2015 ONCA 64, at para. 22, the Court of Appeal held that "a summary judgment motion judge commits an error in principle when he or she fails to assess the advisability of the summary judgment process in the context of the litigation as a whole". More recently, in Butera v. Chown, Cairns LLP, 2017 ONCA 783, at paras. 29 to 34, the Court of Appeal emphasized that motions for partial summary judgment can cause undue delay and expense, holding that a "motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner".

Issues

[25] The issues to be decided on this motion are as follows:

a. Do the terms of the APS preclude Worsley's claim against Imperial Oil? b. Is this an appropriate case for partial summary judgment?

Analysis

Do the terms of the APS preclude the claim advanced by Worsley?

[26] As mentioned above, Worsley relies on the Comfort Letter in support of its position that it did not release Imperial Oil from claims based on the remigration of contaminants from an adjoining property.

[27] The APS provides that the Comfort Letter is a schedule to the agreement and forms part of the agreement between the parties. Therefore, in assessing whether the Comfort letter allows Worsley to proceed with its claim, it is first necessary to review the scope of claims released by Worsley in the body of the APS, and to then determine whether the Comfort Letter modifies the release such as to allow Worsley's claim.

[28] As conceded by Worsley, the APS itself clearly provides that Imperial Oil is to be released from all environmental claims, including claims based on the remigration of contaminants onto the property after closing. There are a number of provisions that separately and collectively make clear that the intention of the parties was for Imperial Oil to be released from any claims advanced based on contamination of the property prior to and after closing from any environmental cause whatsoever.

[29] In Articles 7.3 and E3 of the APS, Worsley expressly released Imperial Oil from all claims "connected with Environmental Matters". "Environmental Matters" is defined very broadly in the agreement to include the following:

"Environmental Matters" means environmental matters relating to the Real Property, whenever and however arising, including, without limiting the generality of the foregoing:

(1) (A) the existence at, in on or under the Real Property, or, (B) on or after the Closing Date, the emanation in any manner from or onto the Real Property

Of any condition or substance (including without limitation, crude oil, refined pretroleum products and derivatives thereof), heat, sound, vibration or radiation resulting from human activity which might impair the quality or usefulness of any air, land or water or adversely affect human health or safety of the reasonable enjoyment of life or property or damage any plant or animal;

(2) The existence of any waste or other substance (including without limitation, any sludge, underground petroleum or other substances, material or waste, crude oil, refined petroleum products and derivatives thereof) at, in on or under the Real Property, or resulting from the emanation in any manner of such waster or other substance from or onto the Real Property ;

(3) The existence or depositing at, in or under the Real Property and/or the discharge from or onto the Real Property of any Contaminant (including, without limitation, any sludge underground petroleum or other substances, material or waste, crude oil, refined pretrolium products and derivatives thereof) at, in, on or under the Real Property or into any soil, water or air in, on or under the Real Property.

(6) any latent defects howsoever caused, whether through or attributable to the negligence, wilful misconduct or other actions of the Vendor Released Parties and/or any other Person or otherwise. (emphasis added)

[30] In Article 9.1, Worsley also agreed that it was purchasing the property "as is":

The Purchaser acknowledges that: (i) the Real Property has been used for (among other things) the storage, sale and transfer of petroleum products, other hydrocarbons, or their derivatives and additives, and that discharges of such products, other hydrocarbons, derivatives and additives into the soil and/or groundwater may have occurred from time to time in the past; (ii) the Real Property is being sold "as is" and the Purchaser agrees to purchase the Real Property "as is" …; and (v) the Vendor shall have no liability or obligation with respect to any Environmental Matters or, without being limited by the foregoing, any other state, nature, quality or condition in, on or under the Real Property, environmental or otherwise, whether or not it is within the knowledge or imputed knowledge of the Vendor, its directors, officers, employees, agents, representatives or contractors, and all of which shall on the Closing Date be accepted and assumed by the Purchaser. (emphasis added)

[31] In Article 13.1 of the APS, Worsley agreed to accept the risk of Environmental Matters that arose after closing:

The Real Property shall remain at the risk of the vendor until the Closing Date. From and after the Closing Date, the Real Property shall be entirely at the risk of the Purchaser and the Purchaser shall assume any and all responsibilities and liabilities arising out of or in any way connected with any Environmental Matters, whether they arose before, on or after the Closing Date and, without being limited by the foregoing, any other state, nature, quality or condition in, on or under the real Property existing as of the Closing Date, whenever and howsoever arising, whether known or unknown and whether environmental or otherwise, and whether such responsibilities and liabilities are imposed by law, equity of any Governmental Authorities. (emphasis added)

[32] It is therefore clear from the plain wording of the APS that the parties intended that Imperial Oil be released from all forms of environmental contamination on the property, including environmental contamination that was the result of remigration of contaminants from adjoining properties that may occur after the closing of the sale. It is hard to imagine how the wording of the release provisions in the Agreement could have been broader. They generally release Imperial Oil from all claims of environmental contamination, and they specifically release Imperial Oil from the claim advanced by Worsley in this action.

[33] While Worsley agrees that the wording of the APS on its own would release the claim it advances, it argues that the terms of the Comfort Letter modify the APS such as to carve out the claim it has made against Imperial Oil in this case. In advancing this argument, Worsley relies on the wording of the Comfort Letter and on the circumstances under which the Comfort Letter was executed. I do not accept these arguments.

[34] In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, at para. 57, the Supreme Court discussed the role of "surrounding circumstances" in contractual interpretation:

While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement ( Hayes Forest Services , at para. 14; and Hall , at p. 30). The goal of examining such evidence is to deepen a decision-maker's understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract ( Hall , at pp. 15 and 30-32). While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement (Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular Inc. (1997), 101 B.C.A.C. 62).

[35] In this case, the evidence of both sides is that the Comfort letter was drafted and agreed to in order to address an apparent claim against Imperial Oil relating to environmental contamination on an adjoining property that came to Worsley’s attention prior to closing. Imperial Oil argues that the Comfort letter is only meant to ensure that it remains liable to the neighbouring property owner after closing, whereas Worsley argues that the Letter is meant to encompass remigration of contamination from the adjoining property that may occur after the sale.

[36] In my view, neither the wording of the Comfort Letter or the evidence of the surrounding circumstances support Worsley's position.

[37] Worsley relies on the first paragraph of the Comfort Letter, which reads as follows:

Notwithstanding the express provisions of Sections 7.3, 9.1(v) and 13, and Schedule "E" of the Agreement of Purchase and Sale between Imperial Oil and the Purchaser in connection with Real property, Imperial Oil hereby confirms that the release contained in Section 7.3 of the Agreement, the acknowledgement contained in Section 9.1(v), the Purchaser's assumption of liability contained in Section 13.1, and the Purchaser's covenants contained in paragraph E.3 of Schedule "E" are not meant to apply to or include any claims of the Purchaser against Imperial Oil relating to environmental contamination by petroleum products located outside the boundaries of the Real Property, to the extent caused by Imperial Oil, or those for whom Imperial Oil is responsible at law, and existing prior to the Closing Date. (emphasis added)

[38] In my view, the reference to "petroleum products located outside the boundaries of the Real Property" makes clear that the intent of the parties is to address contamination on adjoining properties for which Imperial Oil may be liable and not contamination located on the property itself. This intention is made even clearer in the third paragraph of the Letter which explicitly states that the carve out from the release provisions in the APS is not intended to apply to the migration contaminants back onto the property:

Furthermore, nothing in this letter is meant to limit the assumption of liability by the Purchaser or responsibilities of the Purchaser, as they are set out in the Agreement of Purchase and Sale and as they relate to the migration of petroleum products after closing from outside the boundaries of the Real Property onto and/or through the Real property , for which the Purchaser remains liable and responsible for in accordance with the terms of the Agreement of Purchase and Sale. (emphasis added)

[39] As referred to above, the Supreme Court has made clear that the surrounding circumstances cannot be used to deviate from or "overwhelm" the clear wording of an agreement. In this case, the wording of the Comfort Letter is clear and does not support Worsley's position.

[40] In any event, while Worsley argues that it intended to protect itself from remigrated contamination after closing, it has not provided evidence that Imperial Oil agreed to such a request. The only affidavit filed by Worsley in response to the motion was sworn by Howard Goldstein, who describes himself as one of Worsley's principals. In his affidavit, Mr. Goldstein provides the following evidence:

12. In or around this time (prior to any agreement being finalized with Imperial), Longo and I were contacted by a man named Carlos Pires, and/or his legal counsel Lewis Mits. Pires identified himself as the owner of Bairrada, a Portuguese restaurant located at 1000 College Street - immediately to the western border of the Property. Pires had heard that we were in negotiations to acquire the Property and advised us that he was currently in the middle of litigation with Imperial relating to environmental contamination at his property. Longo and I conferred and determined that we needed to ensure that any agreement with Imperial exempted any litigation relating to contamination from, or against, the neighbouring properties from the environmental releases in the Agreement. We also wanted to be protected in the event of any damage we might have relating to contamination outside our site.
13. I am advised by Michael Volpatti, our real estate solicitor on this transaction, and believe that on June 23, 2011 he had a discussion with Imperial's real estate counsel, David Dorsch of Hughes, Dorsch, Garland, Coles LLP ("Dorsch"). During this conversation, Volpatti advised Dorsch that in our view, any release of Imperial relating to environmental issues should not encompass the migration of environmental contamination from the surrounding properties in the event that contamination from the Esso gas station had travelled to any of them (for which we did not wish to be responsible).

[41] In contrast, Imperial Oil's evidence is that it would never have agreed to be liable for any remigration of contaminants unto the property, and that its objective was to be released from any claims relating to the environmental conditions of the property after closing.

[42] Looking at the parties' evidence together, I agree with Imperial Oil's submission that there is in fact no real conflict. Mr. Goldstein's evidence describes Worsley's aspiration that Imperial Oil agree to be liable for contaminants that may remigrate onto the property after the sale, but he does not in fact say that Imperial Oil agreed to such a concession. As reviewed above, looking at the language of the Comfort Letter itself, its terms are clear; there was no such agreement.

[43] Worsley purports to rely on the doctrine of contra proferentum, which provides that an ambiguous provision in a contract is to be interpreted against the interests of the party that drafted the provision or agreement: see Notte v. TELoIP, 2018 ONSC 3190 (Sup. Ct.), at para. 79. In my view, the doctrine has no application here as there is no ambiguity.

[44] Even if I had found ambiguity, Worsley explicitly bargained away its ability to argue that any ambiguities in the agreement should be interpreted in its favour on the basis of the contra proferentum doctrine. Article 16.13 of the APS provides as follows:

This Agreement was prepared with each of the parties having access to its respective legal counsel. Accordingly, the parties acknowledge and agree that this agreement shall be deemed and considered for all purposes as prepared through the joint efforts of the parties and shall not be construed against one party or the other as a result of the preparation, submittal or other event of negotiation or drafting.

[45] Accordingly, in my view, it is plain and obvious that Worsley's claim against Imperial Oil is barred by the release provisions in the APS, including the clear wording of the Comfort Letter. No trial is required to resolve this issue.

Is this an appropriate case for partial summary judgment?

[46] Granting summary judgment to Imperial Oil amounts to granting partial summary judgment as it does not dispose of the claim against AMEC.

[47] As referred to above, the Court of Appeal has cautioned against granting partial summary judgment except in clear cases. The concerns include the prospect of inconsistent findings and the delay and expense of a motion that does not fully dispose of a claim: Butera, at paras. 29 to 34.

[48] Imperial Oil argues that this is an appropriate case for partial summary judgment because the claims against Imperial Oil and AMEC are mutually exclusive and there is therefore no risk of inconsistent findings. In addition, granting summary judgment in Imperial Oil's favour will narrow and focus the issues for trial.

[49] At the hearing of the motion, Worsley appeared to concede that partial summary judgment is appropriate in this case because the judge who scheduled the motion had already determined at a Chamber's Appointment that this is an appropriate case for summary judgment. However, on the motion, Worsley nevertheless argued that partial summary judgment would be unfair because discoveries have not yet taken place.

[50] In my view, this is precisely the type of case in which partial summary judgment is appropriate. Imperial Oil's argument is based entirely on issues of contractual interpretation. In order to decide the issues raised on the motion, I do not have to determine any of the factual and legal issues that may arise in respect of Worsley's claim against AMEC, such as whether there was contamination on the property at the time AMEC prepared the Record of Site Condition, whether contamination was caused by re-migration after the sale of the property, and whether Worsley is entitled to rely on the Record of Site Condition. In addition, deciding the claim against Imperial Oil narrows the issues in the litigation, as Imperial Oil will no longer be a party and the issues raised against Imperial Oil will no longer have to be decided.

[51] While there are certainly cases where granting summary judgment prior to discoveries may be a concern, this is not one of them. Worsley's counsel argued that it has not had the benefit of receiving documents from Imperial Oil that would allow it to ascertain whether Imperial Oil was aware that there was still contamination on the property at the time of the sale. The difficulty with this argument is that, whether Imperial Oil had any such knowledge or not, has no bearing on the claim against Imperial Oil or the disposition of this motion. The Claim against Imperial Oil is entirely based on allegations of contamination on the property that arose after the sale of the property. Presumably, Worsley framed its claim in this manner because of the clear wording of the release in the APS reviewed above. But based on the claim as currently worded and the terms of the release, even if such documents existed, they would not assist Worsley in its claim against Imperial Oil. Ultimately, as the action against AMEC continues, Worsley may determine that such documents are relevant to its claim against AMEC, and it can then seek third party disclosure from Imperial Oil as provided for in the Rules of Civil Procedure.

[52] Before concluding on this issue, I do want to briefly address the submission made by Worsley's counsel on the effect of the Chamber's Appointment. While judges presiding over Chamber's Appointment perform a gatekeeping function in determining whether a case may be appropriate for summary judgment, including partial summary judgment, it is ultimately the judge hearing the motion who has responsibility for making this determination. Accordingly, if I had found that this was not an appropriate case for partial summary judgment, I am not bound by the decision of the judge who scheduled the motion. In many cases, with the benefit of a full record, it may become apparent that a case is not appropriate for partial summary judgment. While this was not the case here, it is nevertheless important for counsel to give proper consideration to the factors in Butera even after the motion is scheduled and to be prepared to argue the issue of partial summary judgment on the return of the motion.

[53] In any event, as indicated above, I find that this is one of those rare but clear cases in which partial summary judgment is appropriate. I can decide the issues between Worsley and Imperial Oil without the risk of inconsistent findings, and the granting of summary judgment in the circumstances of this case will narrow the remaining issues for trial.

Costs

[54] At the conclusion of the hearing, counsel were not prepared to provide submissions on costs. I requested that they seek to reach agreement on costs, failing which they were provide their costs outlines by no later than September 7, 2018.

[55] As Imperial Oil was successful on the motion, it is entitled to costs of the motion and the action. In its costs outline, Imperial Oil seeks costs of $52,390.67, inclusive of disbursements on a partial indemnity basis for the motion and the action.

[56] Worsley's costs outline indicates that it would have sought $14,410.08 in costs if it had been successful on the motion.

[57] In determining the costs of a proceeding, the Court is to consider the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, including the amount claimed, the complexity of the procedure, and the importance of the issues. The Court is also to consider the principles established by the Court of Appeal in Boucher v. Public Accountants Council (Ontario) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), including that the objective of fixing costs is to set an amount that is fair and reasonable in the circumstances of the case.

[58] As held by D.M. Brown J., as he then was, in 3574423 Canada Inc. v. Baton Rouge Restaurants Inc., 2012 ONSC 296 (Sup. Ct.), at para. 11:

In reviewing a claim for costs after a trial a court need not undertake a line by line analysis of the hours claimed, nor should a court second-guess the amount claimed unless it is clearly excessive or overreaching. A trial judge must consider what is reasonable in the circumstances and, after taking into account all of the relevant factors, should award costs in a more global fashion.

[59] In this case, there is no doubt that the issues were important to Imperial Oil given the amount at issue and Imperial Oil's demonstrated intention to have no further liability for the property. However, the legal and factual issues were not particularly complex, the materials were not extensive and there were no cross-examinations. Having regard to these circumstances, I find the amount sought by Imperial Oil somewhat excessive. In my view, $40,000 in costs is reasonable taking account of the relevant factors reviewed above.

Conclusion

[60] For the reasons above, I find that Worsley released the claim advanced in this action against Imperial Oil. The dispute between these parties does not raise any genuine issues for trial and this is an appropriate case for partial summary judgment. The motion is therefore granted and the claim against Imperial Oil is dismissed.

[61] Imperial Oil is entitled to $40,000 in costs inclusive of disbursement plus HST, payable within 30 days of today's date.

FAVREAU J. RELEASED: September 21, 2018