Court File and Parties

COURT FILE NO.: SR-4155-16

DATE: 2020-12-04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LOGAN FLIS, by his Litigation Guardian CHRISTINE FLIS, CHRISTINE FLIS, and HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA, as represented by the MINISTER OF HEALTH AND WELLNESS, Plaintiffs

AND:

CEDAR FAIR, L.P. carrying on business as CEDAR FAIR ENTERTAINMENT COMPANY and CANADA’S WONDERLAND COMPANY, Defendants

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL: G.W. Harris, Counsel for Plaintiffs/Responding Parties T.J. McCarthy and B. Tinslay, Counsel for Defendants/Moving Parties

SUPPLEMENTARY ENDORSEMENT RE: COSTS

[1] In my reasons for decision (2020 ONSC 874), released February 18, 2020, the defendants’ motion for summary judgment was dismissed. I invited written submissions from counsel on the issue of costs, such to be delivered to my chambers within 30 days.

[2] Counsel were diligent n preparing and serving their written submissions. For some reason, these documents were delivered to the filing office and placed in the court file. They were retrieved and presented to me recently as a result of an inquiry from Mr. Harris. I extend apologies to the parties and counsel for the delay caused by our court.

[3] There are two issues identified by counsel in their submissions, namely quantum and whether costs awarded ought be fixed and payable forthwith or deferred to the trial judge or in the cause.

[4] The plaintiffs were successful in opposing the defendants’ motion. They are presumptively entitled to a cost award. The focus of the defendants’ motion for summary judgment dismissing the action was on liability. While a jury may come to a different conclusion at trial, I am not persuaded that the cost award ought be dealt with differently than payable forthwith. In this regard, there was opinion evidence on the motion on the issue of liability, unlike the caselaw relied on by McCarthy, Brown v. Electri-City Amusements Limited, 2010 ONSC 7127 and 2017 ONSC 4006.

[5] As to quantum, Mr. Harris requests an award in the amount of $21,000.00, inclusive of HST and disbursements. Mr. McCarthy submits a reasonable amount is $4,500.00, also all inclusive.

[6] The bill of costs presented by Mr. Harris indicates fees, HST and disbursements totalling $30,949.52, reduced to $22,106.69 on a partial indemnity basis. Mr. McCarthy quite properly disclosed defence costs on a full indemnity basis of $9,350.16, plus HST and disbursements.

[7] I see no reason to depart from the traditional views of partial indemnity costs. The motion was handled in a professional manner by both counsel. There are no factors to elevate costs to substantial or full indemnity.

[8] This is a simplified procedure action. Proportionality is relevant in a cost award. Mr. Harris concedes significant time recorded by his law student, a learning experience, and discounts his request in this regard. In my view, much of the time spent was necessary to address liability regardless of the motion and was required to move the case towards trial. Recorded time must be discounted for that reason.

[9] Mr. Harris seeks to include the disbursement for the expert report of $3,500.00. This report was needed in any event, as opinion evidence will be needed at trial. I am not inclined to allow it at this stage.

[10] While the plaintiffs were compelled to put their best foot forward, or face the dismissal of this action, a cost award must reflect all principles. In this regard, I assess the plaintiffs’ costs at $7,500.00, inclusive of HST and disbursements, payable by the defendant within 30 days.

D.J. Gordon J.

Released: December 4, 2020