Court File and Parties

COURT FILE NO.: CV-18-0152 DATE: 2020-04-29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CANADIAN LAKEHEAD EXHIBITION, Plaintiff AND: 1723022 ONTARIO LTD. GENERAL PARNTER OF THESPORTSDOME LIMITED PARTNERSHIP, LLOYD’S OF LONDON, THE WAWANESA MUTUAL LIFE INSURANCE CO., CANADA BROKERLINK (ONTARIO) INC. PHILPOT & DELGATY LIMITED and AVIVA INSURANCE COMPANY OF CANADA/AVIVA, Defendants

BEFORE: Justice J. Fregeau

COUNSEL: M. Mayhew Hammond, for the Plaintiff T. Rhaintre, for 1723022 Ontario Ltd.

HEARD: By way of written submissions

Endorsement on Costs

[1] At paragraph 35 of my March 13, 2020 Endorsement on Motion, I opined that there had been mixed success on the motion and that the parties were to file written submissions as to the costs of the motion if they were unable to agree on costs.

[2] I have now received and reviewed the Submissions on Costs of Canadian Lakehead Exhibition (“CLE”) and 1723022 Ontario Ltd. General Partner of the Sportsdome Limited Partnership (“Sportsdome”).

Background

[3] CLE and Sportsdome are, respectively, the lessor and lessee of land on which Sportsdome erected an air supported dome structure (the “dome”) for commercial use as a multi-sports facility. The dome collapsed on November 18, 2016, and the parties have been engaged in protracted litigation as to their respective rights and obligations since that date.

[4] In this action, CLE claims, among other things, damages from Sportsdome for its alleged failure to remediate the leased land following the collapse of the dome and a declaration of trust over funds Sportsdome received from its insurers in relation to losses suffered as a result of the dome’s collapse.

[5] On this motion, CLE sought an order requiring Sportsdome to produce a further and better affidavit of documents. Only at the hearing of the motion did CLE specify and narrow the scope of additional documentary discovery sought. Ultimately, two of three items of additional documentary discovery sought by CLE were ordered to be disclosed by Sportsdome.

[6] CLE also sought an order compelling Mr. David Robertson, described as the “general manager” of Sportsdome, to attend for Examination for Discovery. It was not made clear to me why this order was necessary. Little if any time was spent addressing this issue at the hearing of the motion and it will not be considered in my decision on the costs of the motion.

Costs Submissions

[7] CLE seeks costs on a partial indemnity basis in the amount of $5,165.33, inclusive of disbursements and HST.

[8] CLE submits that it was substantially successful on the motion, that the discovery ordered fell within the scope of discovery mandated by the Rules and that partial indemnity costs should reflect that substantial success.

[9] CLE suggests that the law applicable on the motion was not complex but that the lengthy and involved factual background, together with Sportsdome’s position on the issues, resulted in a hearing of almost a full day.

[10] CLE contends that the scope of discovery is an important legal principle of everyday application in civil litigation. The parties and counsel acted reasonably, but for the fact that the motion should not have been necessary, according to CLE.

[11] Sportsdome submits that success on the motion was divided, that they were the more successful party and that they should receive costs of the motion on a substantial indemnity basis in the amount of $3,992.00 inclusive of disbursements and partial HST.

[12] Sportsdome submits that CLE’s documentary discovery requests were overly broad and vague and narrowed only late into the hearing of the motion. Sportsdome submits that, as a result, time and costs were unnecessarily incurred by both parties in preparing for and arguing the motion.

[13] In the alternative, Sportsdome submits that no costs should be ordered as a result of the divided success on the motion.

Discussion

[14] Pursuant to s. 131(1) of the Courts of Justice Act, an award of costs is in the discretion of the court and the court may determine by whom and to what extent the costs shall be paid.

[15] Rule 57.01(1) of the Rules provides that in exercising its discretion as to costs under s. 131 of the Courts of Justice Act, the court may consider, in addition to the result and any offer to settle, various specific factors and “any other matter relevant to the question of costs.” Read in conjunction with s. 131 of the Courts of Justice Act, Rule 57.01(1) confers wide discretion on the court in awarding costs.

[16] It is well settled that in assessing costs the overriding principle is one of reasonableness.

[17] I find that the hourly rates for both counsel, as set out in their respective Bills of Costs, are a reasonable reflection of their levels of experience. However, I find that the time docketed by both counsel for the preparation and argument for this motion to be unreasonable. In my opinion, this occurred for two reasons.

[18] First, I accept the submission of Sportsdome that CLE’s request for additional disclosure, as set out in their Notice of Motion, was exceedingly broad and was narrowed only well into the hearing of the motion. The fault for this lies with CLE.

[19] Second, it was obvious from the position taken by Sportsdome in their factum and at the hearing of the motion, that it was not and would not have been, receptive to any request for disclosure in addition to what it had provided in its original affidavit of documents. The fault for this lies with Sportsdome.

[20] The result of these two factors was that both counsel spent a disproportionate amount of time preparing for and arguing a motion, the subject matter of which could and should have been resolved by way of one or two telephone discussions between counsel, aided by advice from senior counsel who were previously on the file.

[21] In my opinion, this conclusion is supported by the fact that counsel were unable to even agree on the simple issue of who should be examined for discovery on behalf of Sportsdome.

[22] However, CLE was more successful on the motion than Sportsdome and should receive some costs.

[23] In all the circumstances, and bearing in mind the principles of reasonableness and proportionality, Sportsdome shall pay to CLE costs of this motion fixed at $1500.00 inclusive of disbursements and HST.

Justice J. Fregeau Date: April 29, 2020