Court File and Parties
COURT FILE NO.: CV-20-646936 COURT FILE NO.: CV-20-647963 DATE: 20210519
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
GFL INFRASTRUCTURE GROUP INC. Applicant
- and -
TEMPLE INSURANCE COMPANY aka LA COMPAGNIE D’ASSURANCE TEMPLE and AVIVA INSURANCE COMPANY OF CANADA aka AVIVA COMPAGNIE D’ASSURANCE DU CANADA Respondents
Jonathan D. Meadows and Kora Paciorek for the Applicant Jamie Spotswood and Max Ebrahim for the Respondents
AND BETWEEN:
ASHLAND CONSTRUCTION GROUP LTD. Applicant
- and -
TEMPLE INSURANCE COMPANY aka LA COMPAGNIE D’ASSURANCE TEMPLE and AVIVA INSURANCE COMPANY OF CANADA aka AVIVA COMPAGNIE D’ASSURANCE DU CANADA Respondents
Jonathan D. Meadows and Kora Paciorek for the Applicant Jamie Spotswood and Max Ebrahim for the Respondents
HEARD: In writing
REASONS FOR DECISION - COSTS
PERELL, J.
[1] Justice Myers ordered that four Applications be heard together. The Respondents in all four Applications are Temple Insurance Company and Aviva Insurance Company of Canada, whom I shall refer to as the “Insurer.”
[2] In the third Application, the Applicant was GFL Infrastructure Group Inc. In the third Application, GFL sued the Insurer for a declaration that the Insurer has a duty to defend GFL under the Specific Project Wrap-Up Liability Insurance Policy.
[3] In the fourth Application, the Applicant was Ashland Construction Group Ltd. In the fourth Application, Ashland sues the Insurer for a declaration that the Insurer has a duty to defend Ashland under the same Specific Project Wrap-Up Liability Insurance Policy.
[4] GFL Infrastructure and Ashland, who were represented by Harper Grey, were successful on their respective Applications.[^1]
[5] GFL Infrastructure requests costs of $58,763.11, all inclusive, on a full indemnity basis.
[6] Ashland requests costs of $58,987.33, all inclusive, on a full indemnity basis.
[7] Given that the Applications concerned an insurer’s denial of coverage, the Insurer does not dispute that GFL Infrastructure and Ashland are entitled to costs on a full indemnity scale, but it submits that GFL’s and Ashland’s claims for costs are manifestly disproportionate and unreasonable. It submits that the appropriate awards on a full indemnity basis are $20,000 each.
[8] For the reasons that follow, I award: (a) GFL Infrastructure $50,000, all inclusive; and (b) Ashland $50,000, all inclusive.
[9] Without disclosing its lawyer’s time dockets, the Insurer submits that having regard to the issues relevant to the Applicant’s application and comparing the time spent by other parties in the related applications, the Applicant’s costs are grossly excessive. The Insurer submits that the total time spent is excessive and that the Applications were over-lawyered.
[10] The nature of the Insurer’s argument is illustrated by paragraphs 9-12 of its costs submissions in response to Ashland’s claim for costs, which state:
9 All the Applicants and the Respondent in this application had an almost identical task. While Distillery SE and Temple’s scope of work on the application was greater because both Distillery SE and Temple had to consider all the claims from the underlying action, every party to the application had to present legal arguments on the same three points. Where a party claims greater costs with respect to any part of the application (i.e. costs of putting together the Notice of Application) it should be because that party had to deal with more of the underlying claims (i.e. Distillery SE or Temple), it should not be because the party failed to approach the task efficiently. To that end, the Applicant’s Bill of Costs demonstrates a clear failure to do so.
Compared to other parties in this application, the Applicant’s costs are manifestly unreasonable. For example, Distillery SE’s Application Record was 1123 pages which is reasonable given that Distillery SE had to consider all the claims and expert reports from the underlying action. Ashland’s Application Record was 215 pages which also follows since Ashland’s application only focused on one of the underlying claims. Nevertheless, Ashland spent 22.7 hours putting together its NoA while Distillery SE only spent 3.5 hours. Ashland claims costs for 25.8 hours’ work on evidence, yet, Distillery SE only spent 6 hours on evidence.
The tables produced below demonstrate the disproportionate and grossly excessive nature of the Applicant’s costs relative to Distillery:
TABLE 1; APPLICATION DOCUMENTS
| Applicant | Claims in Underlying SoC (no. of issues) | Application Record (pages #) | Factum length | Actual costs |
|---|---|---|---|---|
| Distillery SE | All Claims are made against Distillery S.E. | 1123 pages (NoA 13 pages) | 31 pages | $38,604.39 |
| Ashland | (1) Garage Slab | 215 pages (NoA 10 pages) | 19 pages | $55,987.33 |
| GFL | (1) Exterior wall draining in parking garage claim | 243 pages (NoA 11 pages) | 20 pages | $58,763.11 |
TABLE 2: Time Spent
| Applicant | NoA | Evidence | Correspond. | Factum | Review of Responding Materials | Oral argument prep | Appearance | TOTAL |
|---|---|---|---|---|---|---|---|---|
| Distillery SE | 3.5 hrs | 6 hrs | 2 hrs | 4.5 hrs | 4.5 hrs. | 5 hrs | 12.hrs. | 56 hrs. |
| Ashland | 22.7 hours | 25.8 hrs | 14.6 hrs | 15.6 hrs. | 15.6 hrs | 34.9 hrs. | 9.1 hrs. | 142.5 hrs. |
| GFL | 60.3 | 50.3 hrs | 13.9 | 18.8 hrs | 7.4 hrs | 7.4 hrs. | 21 hrs. | 180.8 hrs. |
[11] A critical controlling principle for the awarding of costs is that the sum awarded reflect the fair and reasonable expectations of the unsuccessful litigant.[^2] The overriding principle in awarding costs is reasonableness.[^3]
[12] In Davies v. Clarington (Municipality)[^4] at para. 52, Justice Epstein stated that the overriding principle in awarding costs is reasonableness. She stated:
- As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher [Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)], this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said: "[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice."
[13] As I shall explain below, I was not assisted by the Insurer’s costs submissions, which were criticism in the air because it did not disclose how it expended its own legal resources.
[14] Although the unsuccessful party is not obliged to disclose what he or she expended on costs, where the unsuccessful party submits that the costs claimed by the successful party are excessive, evidence of what he or she expended is relevant to the determination of what is reasonable and of what the unsuccessful party might reasonably have expected to pay and the failure to proffer this evidence tempers and diminishes the unsuccessful party’s criticism of the excessiveness of the costs claim.[^5] An attack on the quantum of the opponent’s claim for costs without disclosing one’s own bill of costs is no more than an attack in the air.[^6]
[15] The Insurer’s reliance on costs paid to others, who are not before the court was not helpful. Moreover, with respect, the quantitative analysis made in the tables found in the Insurer’s costs submissions are meaningless in the absence of a qualitative analysis. The factual background to the “own work” exclusions in the various applications raised qualitatively different and difficult legal problems. Obviously, excavating is different from paving and paving is different from window installation and the situation of the owner, contractor, and subcontractors are obviously different.
[16] I do agree that even on a full indemnity basis, costs must be reasonable.
[17] In the immediate case, I have reviewed the Bills of Costs, and having presided at the hearing, I am satisfied that the appropriate award in the immediate case is $50,000, all inclusive for each of GFL Infrastructure and Ashland.
[18] Order accordingly.
Perell, J.
Released: May 19, 2021
COURT FILE NO.: CV-20-646936 COURT FILE NO.: CV-20-647963 DATE: 20210519
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
GFL INFRASTRUCTURE GROUP INC. Applicant
- and -
TEMPLE INSURANCE COMPANY aka LA COMPAGNIE D’ASSURANCE TEMPLE and AVIVA INSURANCE COMPANY OF CANADA aka AVIVA COMPAGNIE D’ASSURANCE DU CANADA Respondents
AND BETWEEN:
ASHLAND CONSTRUCTION GROUP LTD. Applicant
- and -
TEMPLE INSURANCE COMPANY aka LA COMPAGNIE D’ASSURANCE TEMPLE and AVIVA INSURANCE COMPANY OF CANADA aka AVIVA COMPAGNIE D’ASSURANCE DU CANADA Respondents
REASONS FOR DECISION – COSTS
PERELL J.
Released: May 19, 2021
[^1]: GFL Infrastructure Group Inc. v. Temple Insurance Company, 2021 ONSC 1909. [^2]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 at para. 24 (C.A.); Stellarbridge Management Inc. v. Magna International (Canada) Inc., 2004 9852 (ON CA), [2004] O.J. No. 2102 at para. 97 (C.A.); Zesta Engineering Ltd. v. Cloutier (2002), 2002 25577 (ON CA), 21 C.C.E.L. (3d) 161 at para. 4 (Ont. C.A.); McGee v. London Life Insurance Co., [2008] O.J. No. 5312 at paras. 5-8 (S.C.J.); Caputo v. Imperial Tobacco Ltd. (2005), 2005 63806 (ON SC), 74 O.R. (3d) 728 at paras. 23-25 (S.C.J.). Lee v. General Motors Co. of Canada, [2004] O.J. No. 2245 (S.C.J.). [^3]: Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 at para. 52 (C.A.). [^4]: (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.). [^5]: Chapman v. Benefit Plan Administrators Ltd., 2014 ONSC 537 at paras. 11-12; MacDonald v. BMO Trust Co., 2012 ONSC 2654 at para. 27; Hague v. Liberty Mutual Insurance Co. (2005), 2005 13782 (ON SC), 13 C.P.C. (6th) 37 at para. 15 (S.C.J.). [^6]: United States of America v. Yemec, 2007 65619 (ON SCDC), [2007] O.J. No. 2066 (Div. Ct.) at para. 54; Risorto v. State Farm Mutual Automobile Insurance Co. (2003), 2003 43566 (ON SC), 64 O.R. (3d) 135 at para. 10 (S.C.J.).