Court File and Parties
COURT FILE NO.: CV-16-69664
DATE: 20210927
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GORDON EGAN, KEVIN KUNKA, SCOTT PETRIE and PAUL CROZIER
Plaintiffs
– and –
NATIONAL RESEARCH COUNCIL OF CANADA and CARLETON UNIVERSITY
Defendants
Counsel:
Michael S. Hebert and Cheryl Gerhardt McLuckie, for the Plaintiffs
Travis Henderson, Sarah Jane Howard and Heather Thompson, for the National Research Council of Canada
Jamie MacDonald, for Carleton University
HEARD: In writing
DECISION REGARDING COSTS
R. Smith J.
Overview
[1] The plaintiffs seek costs of $206,424.98 against the National Research Council of Canada (“NRC”) on a partial indemnity scale. The plaintiffs were successful in obtaining certification as a class proceeding on almost all issues sought. The certification was vigorously opposed by NRC on each issue to be decided.
[2] Carleton University (“Carleton”) was successful in having the claim against it dismissed. It seeks costs of $42,000 all inclusive, on a partial indemnity basis against the plaintiffs. The plaintiffs submit that these costs should be paid by NRC because it encouraged the plaintiffs to add Carleton as a defendant.
[3] NRC submits that it should not be ordered to pay Carleton's costs and should not be ordered to pay costs for the motion for precertification disclosure.
Factors
[4] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure and include in addition to success, the amount claimed and recovered, the complexity and importance of the matter, unreasonable conduct of any party which unduly lengthened the proceeding, scale of costs and any offer to settle, the principle of indemnity, hourly rate claimed the time spent and the principle of proportionality, and the amount that a losing party would reasonably expect to pay.
Success
[5] In this case, the plaintiffs were successful in obtaining certification on most of the issues sought. The claim for punitive damages was deemed premature.
[6] Carleton was successful in having the claim against it dismissed. Carleton's submissions were brief and succinct. It based its submissions on the complete lack of evidence that Carleton had caused PFAS to contaminate the claimant's groundwater.
Complexity and Importance
[7] The issues were complex and very important to the parties.
Scale of Costs and Offers to Settle
[8] No party made an offer to settle and, in the circumstances, costs will be awarded on a partial indemnity basis.
Hourly Rates, Time Spent and Proportionality and Indemnity
[9] None of the parties have objected to the hourly rates claimed and I find them to be reasonable in the circumstances.
[10] NRC does not really contest the time spent, other than for the motion for precertification disclosure, to which it ultimately consented. NRC also submits that some of its submissions on the causes of action were accepted and it was successful in having the claim for punitive damages dismissed at this time.
[11] None of the parties argued that the amounts claimed for costs exceeded what the unsuccessful party would expect to pay.
Disposition
[12] Having considered all of the above factors, I find it is fair and reasonable for NRC to pay costs to the plaintiffs of $200,000 inclusive of HST and disbursements, on a partial indemnity scale for the certification motion, $5000 inclusive of HST and disbursements for the precertification motion, and $2500 for the costs submissions..
[13] The plaintiffs are ordered to pay costs of $20,000 inclusive of disbursements plus HST in view of the focused but limited involvement of Carleton in the certification motion.
Released: September 27, 2021
COURT FILE NO.: CV-16-69664
DATE: 20210927
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GORDON EGAN, KEVIN KUNKA, SCOTT PETRIE and PAUL CROZIER
Plaintiffs
-and-
NATIONAL RESEARCH COUNCIL OF CANADA and CARLETON UNIVERSITY
Defendants
DECISION REGARDING COSTS
R. Smith J.
Released: September 27, 2021