COURT FILE NOS.: 11678/17, 11679/17, 11680/17 & 11991/18
DATE: 2019/07/05
ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO. 11678/17
BETWEEN:
Meridian Credit Union Limited
Plaintiff
– and –
Rymer Bros. Limited and Roy Rymer
Defendants
J. Ross Macfarlane, for the Plaintiff
Adam J. Stewart, for the Defendants
AND BETWEEN:
Rymer Bros. Limited and Roy Rymer
Adam J. Stewart, for the Plaintiffs by Counterclaim
Plaintiffs by Counterclaim
-and-
Meridian Credit Union Limited and
Anthony Rufrano
Defendants by Counterclaim
J. Ross Macfarlane, for Defendant by Counterclaim Meridian Credit Union
Jeff Warwick, for Defendant by Counterclaim Anthony Rufrano
ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11679/17
BETWEEN:
Meridian Credit Union Limited
Plaintiff
– and –
Niagara Composites International Inc.
Defendant
J. Ross Macfarlane, for the Plaintiff
Adam J. Stewart, for the Defendant
AND BETWEEN:
Niagara Composites International Inc.
Adam J. Stewart, for the Plaintiff by Counterclaim
Plaintiff by Counterclaim
-and-
Meridian Credit Union Limited and
Anthony Rufrano
Defendants by Counterclaim
J. Ross Macfarlane, for Defendant by Counterclaim Meridian Credit Union Limited
Jeff Warwick, for Defendant by Counterclaim Anthony Rufrano
ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11680/17
BETWEEN:
Meridian Credit Union Limited
Plaintiff
– and –
Progressive Machinery Inc., and Roy Rymer
Defendants
J. Ross Macfarlane, for the Plaintiff
Adam J. Stewart, for the Defendants
AND BETWEEN:
Progressive Machinery Inc., and Roy Rymer
Adam J. Stewart, for the Plaintiffs by Counterclaim
Plaintiffs by Counterclaim
-and-
Meridian Credit Union Limited and
Anthony Rufrano, Kyle Rufrano, 2391637 Ontario Incorporated, and 2236948 Ontario Incorporated
Defendants by Counterclaim
J. Ross Macfarlane, for Defendant by Counterclaim Meridian Credit Union Limited
Jeff Warwick, for Defendants by Counterclaim Anthony Rufrano, Kyle Rufrano, 2391637 Ontario Incorporated, and 2236948 Ontario Incorporated
ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11991/18
BETWEEN:
Meridian Credit Union Limited
Plaintiff
– and –
Blu-Rabbit Ltd. and Roy Rymer
Defendants
J. Ross Macfarlane, for the Plaintiff
Adam J. Stewart, for the Defendants
AND BETWEEN:
Blu-Rabbit Ltd. and Roy Rymer
Adam J. Stewart, for the Plaintiffs by Counterclaim
Plaintiffs by Counterclaim
-and-
Meridian Credit Union Limited and
Anthony Rufrano
Defendants by Counterclaim
J. Ross Macfarlane, for Defendant by Counterclaim Meridian Credit Union Limited
Jeff Warwick, for Defendant by Counterclaim Anthony Rufrano
The Honourable Mr. Justice D.L. Edwards
COSTS ENDORSEMENT
[1] On June 6, 2019 I heard four summary judgment motions brought by the plaintiff. The plaintiff sought judgment against the defendants on the main claim and dismissal of the counterclaims brought by those defendants in each action. On June 11, 2019 I released my decision wherein I dismissed the plaintiff’s four summary judgment motions.
[2] The defendants now seek a cost award in the amount of $59,863.88 or alternatively costs on a substantial indemnity basis in the amount of $64,025.38. The plaintiff submits that a more appropriate amount would be $14,000 including HST.
[3] The defendants assert that there is no reason to depart from the ordinary practice that costs follow the event and should be awarded to the successful party. Further, they submit that the four-part test in Ashim v. Zia, 2015 ONSC 564 has been satisfied and that they are entitled to costs on a substantial indemnity basis. They submit that the amount of material they were required to file to support their position was very detailed and thorough and significantly greater than the materials that the plaintiff filed.
[4] The plaintiffs submit that there is no basis to award costs on a substantial indemnity basis. Further, the defendants have presented a cost outline and not a Bill of Costs. That outline includes costs of the action, not just costs of the motion. Further there was considerable duplication in documentation provided by the defendants, that was not necessary.
Analysis
[5] In exercising my discretion under Section 131 of the Courts of Justice Act, Rule 57.01 of the Rules of Civil Procedure sets out the factors that I should consider in fixing costs.
[6] Rule 57.01 states:
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.
[7] The defendants were successful and are entitled to a cost award. The real question is quantum.
[8] My overall task is to fix an amount that is fair and reasonable for the unsuccessful party to pay in this proceeding, and not an amount fixed by the actual costs incurred by the successful litigant. Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579, at para. 24.
[9] I am satisfied that this matter was complex; there were four somewhat connected actions; the issues were important; and the defendants’ success was very significant.
[10] When considering the amount that an unsuccessful party might reasonably expect to pay, a Bill of Costs from the party is useful. The plaintiff did not provide me with its Bill of Costs for the motion, but it did provide a Bill of Costs for the entire action, in which the plaintiff sought the sum of $62,542.50 for the entire action.
[11] After considering all of these factors, I am satisfied that the fees claimed by the defendants should be reduced for several reasons.
[12] First, I see no reason to allow the defendants costs on a substantial indemnity costs basis.
[13] Second, although the parties took entirely different approaches to this motion and the merits of the defence, I am satisfied that the time expended by the defendants’ counsel, and therefore the costs claimed, exceeds what the losing party could reasonably be expected to pay. The amount of the costs incurred by the plaintiff on the entire matter is similar in amount to the costs claimed on this motion by the defendants.
[14] Third, some of the costs (fees and disbursements) claimed by the defendants are with respect to the main action and not the motion itself.
[15] Fourth, there were four summary judgment motions before me with respect to four actions. The defendants’ position was that most documents were relevant to all actions. However, I find that there was no need to duplicate all documents for each file. This was an unnecessary cost.
[16] After considering all of these factors, I order that the plaintiff pay to the defendants a cost award for these motions in the amount of $25,000 fixed inclusive of HST.
D.L. Edwards J.
Released: July 5, 2019