COURT FILE NO.: CV-19-624070

RELEASED: 2021/01/18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2531574 Ontario Inc. O/A SCC Autosport v. Doyle Manufacturing Inc.

BEFORE: Master Graham

HEARD: October 20, 2020

COUNSEL: Maxwell Reedijk for the applicant (moving party on the motion) Antony Niksich for the respondent

REASONS FOR DECISION

(Re: applicant’s motion to strike the respondent’s Notice of Objection under the Repair and Storage Liens Act, and to direct the return or the seizure of the subject article)

[1] The applicant SCC Autosport offers car enthusiasts the opportunity to drive race cars on race tracks in Canada and the United States. Shazar Samji is its sole officer and director. On January 3, 2017, SCC Autosport, through Club SCC LLC, a U.S. corporation of which Mr. Samji is also the principal, acquired “a 2014 Freightliner Argosy” (“the Argosy”), which it describes as “a specific model freightliner transport truck.” SCC Autosport purchased the Argosy with the intention of customizing it to include a mobile lounge for its clientele and to make it roadworthy in Ontario.

[2] The respondent Doyle Manufacturing Inc. (“Doyle”) manufactures custom-built trucks, vans and transport trailers. Brian Doyle is its sole officer and director. Doyle gave SCC Autosport an estimate for the customization work and the parties subsequently entered into an agreement whereby Doyle was to perform the work. Doyle also arranged through an import agent for the Argosy to be imported into Canada.

[3] As stated, SCC Autosport describes the Argosy provided to Doyle for customization as a transport truck. However, Doyle submits, and Mr. Samji acknowledged on cross-examination, that what SCC Autosport provided to Doyle was actually a “glider kit”, consisting of a cab, chassis and engine taken from a 2014 Freightliner Argosy truck. Mr. Samji also acknowledged that when provided to Doyle, the Argosy had no transmission or axles and was not capable of being driven.

[4] The term “glider kit” is based on an analogy between a glider aircraft, which has no engine, and the Argosy components as provided to Doyle, which although they included an engine, did not constitute a driveable vehicle. As elaborated below, Doyle submits that, rather than being provided with a truck to be modified or customized, they were provided with components to manufacture a different product, being a motor home/recreational vehicle, such that the Repair and Storage Liens Act would not apply to the transaction. This is a central issue on the motion.

[5] Doyle started the customization work in February, 2017. In or about May, 2018, SCC Autosport began to lose confidence in Doyle’s ability to complete the powertrain components of the customization. The relationship between the parties subsequently deteriorated to the point that SCC Autosport requested the return of the Argosy so that the work could be completed by a third party. On January 4, 2019, Doyle’s office manager informed SCC Autosport that “there will be no issue releasing the truck after payment has been received for the outstanding invoice”. On January 6, 2019, SCC Autosport requested that Doyle stop working on the Argosy.

[6] On May 30, 2019, after some further discussions, Doyle wrote to SCC Autosport advising that they had “no choice in charging storage fees and interest” until SCC Autosport paid the “outstanding invoice including the HST ($126,920.36) or sign the Ownership over.” Doyle’s invoice dated July 2, 2019 reflects total charges of $273,005.90, payments of $143,034.54, and a balance owing of $129,971.36.

[7] As SCC Autosport was not prepared to pay the invoice, on July 19, 2019 it filed an application for an Initial Certificate pursuant to s. 24 of the Repair and Storage Liens Act, R.S.O. 1990, c. R. 25 (“RSLA”). The applicable steps created by s. 24 that are relevant to this motion are:

• The owner of the article files an Application for Initial Certificate Under Section 24 and pays the disputed amount into court, noting what part of that amount, if any, has been offered in settlement (s. 24(1) and (4));

• The court then issues an Initial Certificate, indicating the amount that was paid into court (s. 24(5));

• Within three days of receiving the Initial Certificate, the lien claimant shall release the subject article unless, within the three day period, it contests the amount paid into court by filing a Notice of Objection (s. 24(6));

• Where the lien claimant does not release the article as required, the owner may obtain from the clerk or registrar of the court, without notice to the respondent, a writ of seizure in the prescribed form directing the sheriff or bailiff to seize the article and, upon receipt of the writ, the sheriff or bailiff shall seize the article and return it to the owner (s. 24(9));

• If the article is released, the lien is discharged as against the article and “becomes instead a charge upon the amount paid into court”; where the lien claimant seeks to recover the full amount that it claims, it may commence an action to recover the amount (s. 24(13)).

[8] Pursuant to its application, SCC Autosport paid into court $132,221.36, consisting of the balance owing of $129,971.36 plus $2,250.00 for possible excess storage fees and incidentals, and served its Initial Certificate on Doyle on July 22, 2019.

[9] On July 24, 2019, Doyle’s counsel responded, stating:

• They would serve and file a Notice of Objection (under RSLA s. 24(6)) the following day;

• It would be necessary to remove Doyle as the “importer” of the vehicle to eliminate any possible liability under the Canada Motor Vehicle Safety Regulations;

• The removal of Doyle as the importer would likely trigger “custom/duty charges and applicable taxes” in an unknown amount, for which SCC Autosport would be liable.

[10] It is significant that Doyle’s counsel did not state at this time that it was not asserting an RSLA lien against the Argosy.

[11] On July 25, 2019, Doyle’s counsel filed a Notice of Objection under s. 24(6) of the RSLA, objecting to the amount of $132,221.36 paid into court, and claiming a total amount owing “to be determined” on the basis that Doyle must be removed as the “importer” of the vehicle which would result in “additional custom/duty charges and applicable taxes” payable by SCC Autosport.

[12] SCC Autosport’s counsel responded that the Notice of Objection was “not properly constituted and is not compliant.” Doyle’s counsel acknowledged that the court would not accept the original Notice and served a revised Notice of Objection claiming a total amount owing of $282,221.36, based on the $132,221.36 paid into court plus $150,000.00 in estimated “custom charges”. Doyle’s counsel confirmed in correspondence of July 25, 2019 that the $150,000.00 amount was Doyle’s estimate of the charges.

[13] On July 26, 2019, SCC Autosport’s counsel responded in writing that the value of the truck when imported was only approximately $30,000.00 so there was no basis for $150,000.00 in import duties. He requested a breakdown of the $150,000.00 amount. Doyle’s counsel responded on July 31, 2019 that, as it had been designated the importer of the Argosy, in order to release it to a third party in an uncertified and unregistered state, it would have to export it back to the U.S. and then re-import it into Canada with a new designated importer.

[14] In his July 31, 2019 correspondence, Doyle’s counsel provided a list of the “costs/expenses to export the Vehicle”, with no specific amounts for any of the items, as follows:

1. Duty and taxes to cross the border
2. Brokerage costs to export
3. Cancellation of importer fees
4. Valuation of the current value of the vehicle and parts
5. Low-boy trailer for transportation of the Vehicle
6. Secondary trailer for Vehicle parts; including the cab
7. Preparation for travel; including, remove, itemize, organize, and package the Vehicle parts
8. Fuel and other environmental discard surcharge costs
9. Crane to load the Vehicle onto the trailer
10. Technician costs to cover incomplete wall of the Vehicle for travel, including, the cost of material
11. Technician costs to remove tires, rims, and set up dunnage so that the skirting of the Vehicle does not get damaged
12. Transportation costs from our client’s location to a RV storage location in Michigan
13. Warehouse fees
14. Crane at the US storage facility to unload the Vehicle
15. Technician costs to reinstall tires and rims on the Vehicle
16. Miscellaneous costs with respect to delays at the border

[15] It should be noted that all of the categories of expenses listed by Doyle’s counsel as comprising the additional $150,000.00 are in respect of the export of the Argosy, none of those expenses relate to the actual repair of the vehicle within the definition in s. 3 of the RSLA (see below), and none of those expenses were contained in the Doyle invoice that was the basis for SCC Autosport’s payment into court.

The motion before the court

[16] In late August, 2019, SCC Autosport initiated this motion, originally returnable on December 13, 2019, for an order striking Doyle’s Notice of Objection and compelling the release of the Argosy to it. The relief sought on the motion is:

(a) An Order under rule 25.11 striking out the Notice of Objection of the Respondent Doyle Manufacturing Inc., dated July 25, 2019;

(b) An order under s. 24(9) of the RSLA that the registrar of the court issue a writ of seizure directing the sheriff or bailiff to seize the Vehicle (i.e. the Argosy) and return it to SCC Autosport.

[17] Rule 25.11 states:

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court. [emphasis added]

[18] In support of its submission that rule 25.11(c) can be the basis for a motion to strike a Notice of Objection under s. 24(6) of the RSLA, SCC Autosport relies on the decision of Master Muir in Belair Insurance Company v. Associates Auto Group, 2018 ONSC 1883. The applicant Belair was an insurer that assumed ownership of its insured’s damaged vehicle and the respondent Associates Auto was the repairer of the vehicle. Associates Auto asserted an RSLA lien on the vehicle and stated its intention to sell it, demanding $29,059.75 for all repairs, storage costs, bailiff fees and taxes. Belair commenced an application under RSLA s. 24 and paid $30,000.00 into court. Associates Auto delivered a Notice of Objection demanding security in excess of $1.5 Million.

[19] On Belair’s motion to strike the Notice of Objection under rule 25.11, Master Muir stated (at para. 11):

11. Pursuant to Rule 25.11, the court has the power to strike out any pleading or other document in a proceeding where the court finds the document to be frivolous, vexatious or an abuse of the process of the court. The RSLA is intended to provide affected parties with a summary and expeditious process for dealing with claims relating to the repair and storage of personal property, including motor vehicles. Section 24(6) of the RSLA allows a respondent to file a notice of objection in the prescribed form. The form of the notice of objection as established by the regulations to the RSLA is clear. It refers to the “amount owing for the repair, storage or storage and repair” of the property in issue. Section 28(2) of the RSLA does refer to the right of a lien claimant to recover expenses incurred in connection with the custody, preservation and preparation for sale of the subject article. However, those expenses must be commercially reasonable and fall within the specific categories set out in that section. [emphasis added]

[20] Master Muir noted that Associates Auto, in addition to its claim for storage and repair of the subject vehicle, was seeking a lien for claims including the full value of the vehicle, the cost of repairs yet to be done, and damages for injury to their security, integrity, dignity and freedom of association, estimated at $1.4 Million. With respect to these claims, Master Muir stated (at para. 12):

12. These claims are simply not contemplated by the provisions of the RSLA. The claims are not commercially reasonable in the context of the repair and storage of a motor vehicle and an application under s. 24 of the RSLA. The inclusion of these claims in the notice of objection is contrary to the objectives of the RSLA. As such, they amount to an abuse of process. In my view, the proper remedy in response to a notice of objection of this nature is an order striking out the notice of objection. See Deol v. Motosport Recovery Storage Facilities, [2013] O.J. No 6208 (SCJ-Small Claims Court) at paragraphs 17 to 24.

[21] Master Muir both granted the order striking the notice of objection and ordered that Associates Auto release the subject vehicle forthwith, failing which a writ of seizure and sale would be issued directing the sheriff to seize the vehicle.

[22] Accordingly, based on Belair Insurance, the court may strike a Notice of Objection under the RSLA where it includes claims that constitute an abuse of process. An attempt by a lien claimant to use a Notice of Objection to recover claims other than “the amount owing for the repair, storage or storage and repair” (see Belair, supra paragraph 11) of the article in question can constitute an abuse of process.

[23] Doyle’s position on the motion is best summarized in its counsel’s correspondence of November 18, 2019 to SCC Autosport’s counsel asserting that:

1. The RSLA did not apply to the dispute between the parties because the work done by Doyle in respect of the Argosy glider kit was not a repair, but rather constituted manufacturing a new vehicle.

2. Doyle was prohibited by the Motor Vehicle Safety Act, S.C. 1993, c. 16 (“MVSA”) from releasing the Argosy to SCC Autosport in its current unfinished and uncertifiable state.

Issues on the motion

[24] The issues on the motion are:

1. Did Doyle’s work on the Argosy constitute “repair” under the RSLA?

2. Did Doyle, by its conduct, acknowledge that it was subject to the procedures in s. 24 of the RSLA?

3. Is the Motor Vehicle Safety Act a bar to the order sought by SCC Autosport?

Analysis of the issues

Did Doyle’s work on the Argosy constitute “repair” under the RSLA?

[25] The resolution of this issue requires a review of sections 1 and 3 of the RSLA.

[26] Section 1(1) of the RSLA contains the following definitions:

“article” means an item of tangible personal property other than a fixture;

“repair” means an expenditure of money on, or the application of labour, skill or materials to, an article for the purpose of altering, improving or restoring its properties or maintaining its condition and includes, [emphasis added]

(a) the transportation of the article for the purpose of making a repair,

(b) the towing of an article,

(c) the salvage of an article;

“repairer means a person who makes a repair on the understanding that the person will be paid for the repair.”

[27] Section 3 of the RSLA provides for when a repairer’s lien arises and takes effect, and the basis for the monetary amount of the lien:

3(1) In the absence of a written agreement to the contrary, a repairer has a lien against an article that the repairer has repaired for an amount equal to one of the following, and the repairer may retain possession of the article until the amount is paid:

1. The amount that the person who requested the repair agreed to pay.

2. Where no such amount has been agreed upon, the fair value of the repair, determined in accordance with any applicable regulations.

3. Where only part of a repair is completed, the fair value of the part completed, determined in accordance with any applicable regulations.

(2) A repairer’s lien arises and takes effect when the repair is commenced, except that no repairer’s lien arises if the repairer was required to comply with sections 56 and 57, subsection 58(1) and section 59 of the Consumer Protection Act, 2002, if applicable, and the repairer has not done so. [emphasis added]

[28] The parties do not dispute that the “Argosy” or “glider kit” provided by SCC Autosport to Doyle is “an item of tangible personal property other than a fixture” and is therefore an “article” under the RSLA. The issue is whether Doyle’s work in respect of the Argosy constituted “repair” within the definition in s. 1(1) of the RSLA.

[29] SCC Autosport submits that Doyle’s work constituted a “repair” to the Argosy in that it altered and improved it by constructing an enclosed lounge behind the cab portion of the truck.

[30] Doyle submits that its claim against SCC Autosport is not an RSLA lien claim because the Argosy glider kit was used to manufacture a completely new product, being a recreational vehicle, and was therefore not a “repair” under the Act. Accordingly, no lien came into effect, and SCC Autosport is not entitled to use s. 24 of the RSLA to recover possession of the Argosy.

[31] The first issue with respect to the application of the RSLA is whether Doyle was altering or improving an existing article, or whether it was using the glider kit as a component in the manufacture of a new product. To resolve the “repair” issue, the court must consider the character of the Argosy glider kit that Doyle was working on for SCC Autosport and whether what Doyle was doing to the original article to produce the anticipated end product constituted “altering, improving or restoring its properties” as contemplated by the definition of “repair” in s. 1(1) of the RSLA.

[32] The Argosy glider kit consisted of a cab, chassis and engine. The motion materials (exhibit 2 in SCC Autosport’s supplementary motion record) include photographs of a similar glider kit which looks like the truck or tractor portion of an “18 wheeler” tractor-trailer. The photographs of what Doyle calls “the Argosy in its current incomplete state” (exhibit E in the respondent’s motion record) show a modified form of the truck with an elongated chassis and with an incompletely covered area immediately behind the cab.

[33] Resolution of the issue of whether Doyle’s work constitutes “repair” of the Argosy requires a consideration of the purpose of the RSLA. The RSLA creates a means to protect the right of a “repairer” to be compensated for the value that they have added to an “article”. The definition of “repair” in the RSLA includes “the application of labour, skill or materials to an article for the purpose of altering, improving or restoring its properties”. The wide scope of the possible range of work included in the words “altering, improving or restoring” is intended to provide broad protection to those engaged in that field of endeavour and the language of the statute should therefore be construed broadly.

[34] The article provided to Doyle to work on began as a truck; a non-operational truck but a truck nonetheless. On a reasonably broad reading of the RSLA, Doyle’s work consisted of alterations and improvements to the Argosy truck by adding a lounge area, but ultimately, the Argosy would still fundamentally be a truck. The substance of Doyle’s work to add a lounge area to the Argosy was therefore within the scope of “repair” under the RSLA.

[35] Doyle also submitted that the RSLA does not apply to the Argosy because Transport Canada considers it a new vehicle manufactured by Doyle, rather than a repaired article. However, the definition of “repair” in the RSLA operates independent of how a glider kit might be characterized under another statute or regulation. While a glider kit in itself may not constitute a new vehicle for the purpose of the legislation under which it was imported, the “application of labour, skill or materials” to it still amounts to “altering, improving or restoring its properties” such as to constitute repair of the article under the RSLA.

[36] It is the character of the work performed on the article that determines whether the work falls within the scope of the RSLA. For the above reasons, Doyle’s work on the Argosy constitutes “repair” under the RSLA regardless of how Transport Canada would classify the Argosy.

Did Doyle, by its conduct, acknowledge that it was subject to the procedures in s. 24 of the RSLA?

[37] SCC Autosport submits both that Doyle’s work on the Argosy constituted “repair” giving rise to a lien claim, and that during the period between January 4, 2019 and November 18, 2019, Doyle’s own conduct was consistent with its assertion of a lien claim.

[38] Under s. 3(2) of the RSLA, “a repairer’s lien arises and takes effect when the repair is commenced”, in this case in February, 2017 when Doyle began working on the Argosy. The relationship between the parties began to deteriorate subsequent to May, 2018. After SCC Autosport requested the return of the Argosy, Doyle responded on January 4, 2019 that “there will be no issue releasing the truck after payment has been received for the outstanding invoice”. The retaining of the Argosy by Doyle pending payment of its outstanding invoice was an assertion of lien rights.

[39] Then, on May 30, 2019, after some further discussions, Doyle wrote to SCC Autosport advising that they had “no choice in charging storage fees and interest” until SCC Autosport paid the outstanding invoice or signed the Ownership over. Once again, by refusing to relinquish possession of the Argosy until its invoice was fully paid, Doyle conducted itself as though it was asserting a possessory lien over the Argosy.

[40] Doyle’s assertion of lien rights over the Argosy continued after SCC Autosport paid into court the balance owing on Doyle’s invoice, plus possible excess storage fees and incidentals, and served its Initial Certificate under s. 24 of the RSLA on Doyle on July 22, 2019. Doyle’s counsel responded on July 24, 2019 that they would serve and file a Notice of Objection under RSLA s. 24(6) and then filed a Notice on July 25, 2019. When the court would not accept Doyle’s original Notice because it included an amount “to be determined”, Doyle’s counsel served a revised Notice of Objection claiming the $132,221.36 paid into court by SCC Autosport plus $150,000.00 in estimated “custom charges”.

[41] SCC Autosport brought this motion in August, 2019, returnable December 13, 2019, and it was not until November 18, 2019 that Doyle’s counsel first suggested that the dispute between the parties was not appropriately resolved under the RSLA.

[42] To summarize, when the relationship between the parties broke down, Doyle conducted itself as though it was asserting a possessory lien over the Argosy by refusing to relinquish possession of it to SCC Autosport until it was fully paid. Rather than moving to strike SCC Autosport’s Initial Certificate on the basis that its work did not fall within the scope of the Act, Doyle implicitly acknowledged its assertion of a lien claim by serving a Notice of Objection, which is a step that can only be taken in an RSLA application. Doyle also tried to use the RSLA to force SCC Autosport to pay $150,000.00 more than the amount of its invoice. It was only upon realizing that the amounts comprising that $150,000.00 could not form part of an RSLA lien claim that Doyle took the position in November, 2019 that the subject matter of its work for SCC Autosport was not an RSLA matter.

[43] Doyle may not on one hand use its Notice of Objection under the RSLA to prevent the release of the Argosy and to try to force SCC Autosport to pay it another $150,000.00 and then on the other submit that the RSLA does not apply to its work. The fact that Doyle engaged in the RSLA process by filing a Notice of Objection in which it claimed additional funds amounts to attornment to the RSLA process. Doyle’s conduct in this regard is consistent with SCC Autosport’s submission that its work on the Argosy constituted “repair” under the RSLA.

Are the Motor Vehicle Safety Act restrictions on the disposition of the Argosy in its current incomplete form a bar to the order sought by SCC Autosport?

[44] Doyle submits that it is prohibited by the federal Motor Vehicle Safety Act from releasing the Argosy to SCC Autosport because it is incomplete and a court order for the release of the Argosy will result in penalties to Doyle. Doyle further submits that Transport Canada has notified it that the incomplete Argosy must be exported to the U.S. or destroyed.

[45] This submission is essentially a distraction from the real issues on the motion, which are whether SCC Autosport should be granted an order striking Doyle’s Notice of Objection under the RSLA, and whether Doyle should be ordered to release the Argosy to it.

[46] I have concluded above that by its conduct, Doyle asserted an RSLA lien claim over the Argosy in respect of its “repair” work for the purpose of securing payment both for its unpaid invoice and for an additional $150,000.00 in expenses separate from its work. If the Notice of Objection should be struck because the claims for the additional $150,000.00 in expenses are not recoverable under the RSLA, then SCC Autosport is entitled to an order for the return of the Argosy. In that event, Doyle is protected from any liability under the Motor Vehicle Safety Act by the fact that it will be releasing the Argosy pursuant to a court order.

[47] Once SCC Autosport reassumes possession of the Argosy, compliance with legislation or regulations related to its roadworthiness becomes their problem and not Doyle’s. Further, Doyle’s concern about liability arising out of the possible operation of the Argosy can be addressed by including in the court’s order terms prohibiting the operation of the Argosy until it is certified as operational by the appropriate authority or authorities, federal and/or provincial, and registered with the Ontario Ministry of Transportation.

Summary and Decision

[48] For these reasons, Doyle’s work on the Argosy constitutes a repair under the RSLA. Through its conduct in relation to its unpaid invoice, Doyle asserted an RSLA lien over the Argosy. SCC Autosport took the appropriate steps under the RSLA to obtain an Initial Certificate by paying the amount of the invoice into court to secure the release of the article. Doyle then filed a Notice of Objection which includes a total amount owing of $282,221.36, based on the $132,221.36 paid into court plus $150,000.00 in estimated “custom charges”.

[49] SCC Autosport’s motion is to strike Doyle’s Notice of Objection under rule 25.11(c) on the basis that Doyle is using it as a means to assert a claim against it beyond what is recoverable under the RSLA, which is an abuse of the process of the court. As stated by Master Muir in Belair Insurance Company v. Associates Auto Group, 2018 ONSC 1883 (at para. 11), “the form of the notice of objection [under s. 24(6) of the RSLA] as established by the regulations to the RSLA . . . refers to the ‘amount owing for the repair, storage or storage and repair’ of the property in issue.” The items comprising the additional $150,000.00 claimed by Doyle, as set out in paragraph [14] above, all relate to the re-exporting of the Argosy to the U.S. and are not properly the subject of Doyle’s lien claim. First, none of these amounts relate to the repair and/or storage of the Argosy. Second, having never been incurred, no such amounts can be “owing”.

[50] In Belair Insurance, Master Muir struck the respondent’s Notice of Objection under the RSLA as an abuse of process because the claims asserted for injury to their security, integrity, dignity and freedom of association were “not commercially reasonable in the context of the repair and storage of a motor vehicle and an application under s. 24 of the RSLA” (Belair Insurance at para. 12). In this case, Doyle’s Notice of Objection asserts claims for “costs/expenses to export the vehicle” which are not claims in respect of the repair and storage of the Argosy and are therefore an abuse of its RSLA lien rights.

[51] The dispute between the parties over the amount that Doyle should recover for its work on the Argosy can be resolved based on the moneys paid into court by SCC Autosport, so the Argosy can and shall be returned to SCC Autosport in accordance with my order below. As indicated above, once the Argosy is returned to SCC Autosport, they and not Doyle are responsible for compliance with legislation or regulations related to its roadworthiness and registration.

[52] For these Reasons, I order as follows:

1. Doyle’s Notice of Objection dated July 25, 2019 is hereby struck as an abuse of the process of the court.

2. Pursuant to RSLA s. 24(9), the registrar of the court shall issue a writ of seizure directing the sheriff to seize the Argosy and upon receipt of the writ, the sheriff shall seize the Argosy and return it to SCC Autosport. This order is hereby stayed for 15 days to give Doyle the opportunity to return the Argosy in its current state to SCC Autosport, without SCC Autosport having to involve the sheriff.

3. Once the Argosy is returned to SCC Autosport, SCC Autosport shall not permit it to be operated on a highway until it has been registered with and certified as roadworthy by the appropriate federal and/or provincial regulatory authorities.

Costs

[53] At the conclusion of the hearing, both counsel filed costs outlines. If the parties cannot agree on the disposition of the costs of the motion, they may make written submissions, SCC Autosport within 20 days and Doyle within 20 days thereafter. The parties’ written submissions shall not exceed three pages not including their costs outlines.

[54] For the assistance of the parties in resolving the issue of costs, I note from the costs outlines that SCC Autosport’s partial indemnity costs total $20,212.04 ($17,290.00 for fees + $2,922.04 for disbursements) and Doyle’s partial indemnity costs total $27,015.24 ($21,690.00 for fees + $2,819.70 HST + $1,658.04 disbursements). The applicant SCC Autosport was successful on the motion and will likely be entitled to costs. As SCC Autosport’s partial indemnity fees are $4,400.00 less than Doyle’s, Doyle will have difficulty persuading the court that those costs were not within their reasonable expectations.

MASTER GRAHAM

January 18, 2021