COURT FILE NO.: CV-20-1519

DATE: 2021/05/19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lawrence Drost, Applicant

AND:

Legend Dairy Farm Ltd. and Eric Salonen, Respondents

BEFORE: Justice D.A. Broad

COUNSEL: Robert W. Scriven, for the Applicant

Respondent Eric Salonen – self-represented

costs ENDORSEMENT

[1] In my Endorsement released March 26, 2021 I directed that, if the parties were unable to reach an agreement with respect to the costs of the motion brought by the respondent Eric Salonen, they were to deliver written submissions on costs according to a specified schedule.

[2] Mr. Scriven on behalf of the applicant submitted costs submissions on April 9, 2021. The respondent Eric Salonen, who is now self-represented has made no submissions on costs.

[3] The applicant seeks costs on a substantial indemnity basis in the sum of $6,356.31, comprised of fees in the sum of $5,469.75, HST on fees in the sum of $711.07 and disbursements, inclusive of HST on assessable disbursements in the sum of $175.49.

[4] The applicant submits that an award of substantial indemnity costs against Mr. Salonen is warranted on the basis that:

(a) he sought to impose a very tight timetable upon the court based on his needs;

(b) he did not provide any persuasive evidence of harm, a cogent plan to preserve quota and commence dairy operations at an alternate location; or

(c) notification by him to the Dairy Farmers of Ontario with regard to his health concerns, the continuance of an abeyance, or any other information to justify the variance of the interim Order freezing the quota.

[5] The applicant submits that resources, both judicial and on behalf of the applicant, were expended, and cost sanctions are to follow.

[6] It is well-established that elevated costs are warranted in only two circumstances - the first involving the operation of an offer to settle under rule 49.10 where substantial indemnity costs are explicitly authorized, and second, when a losing party has engaged in behaviour worthy of sanction (see Davies v. Clarington (Municipality), 2009 ONCA 722, at para. 28).

[7] In my view, the conduct of the respondent Mr. Salonen did not rise to the level of reprehensible conduct, such as abuse of process, that would give rise to an award of substantial indemnity costs.

[8] By the absence of any submissions from the respondent, it must be inferred that he takes no issue with respect to the hours expended by counsel for the applicant.

[9] In the circumstances, I fix the applicant’s costs on a partial indemnity basis in the sum of $3,950 in respect of fees, $513.50 in respect of HST on fees and $175.49 in respect of disbursements, inclusive of HST, rounded to $4,640.

Disposition

[10] Is therefore ordered that the respondent Eric Salonen pay to the applicant costs fixed in the sum of $4,640, forthwith.

D.A. Broad, J.

Date: May 19, 2021