Court File and Parties

COURT FILE NOs.: CV-20-00634490-0000 and CV-20-00650575-0000

DATE: 2021-10-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: COLLINGWOOD AVIATION PARTNERS LTD, Applicant/Respondent by Counter-Application – and – WINTERLAND AIRFIELD HOLDINGS LTD., Respondent/Applicant by Counter-Application

BEFORE: E.M. Morgan J.

COUNSEL: Nancy Roberts and Alexis Beale, for Collingwood Aviation Partners Ltd. David Lavangie and Teodora Prpa, for Winterland Airfield Holdings Ltd.

HEARD: Cost submissions in writing

COSTS ENDORSEMENT

[1] The Applicant, Collingwood Aviation Partners Ltd. (“CAPL”), was successful on the merits of its Application: Collingwood Aviation Partners v. Winterland Airfield, 2021 ONSC 3023. It deserves its costs.

[2] At paragraph 53 of my judgment on the merits I stated:

[53] With respect to costs, both sides agree in their factums that they are governed by article 12.2 of the Operating Agreement. Article 12.2 provides:

12.2 The Town covenants with the Owner to indemnify the Owner against all actions, suits, claims, damages, costs and liability arising out of:

a) breach, violation or non-performance of any Town covenant, condition and agreement in this Agreement, and from all costs, counsel fees, expenses and liabilities incurred as a result of any such claim or any action or proceeding brought thereon.

[3] Counsel for CAPL submits that this contract provision requires the losing party to pay the winning party costs on a full indemnity basis. While that may be the lay person’s understanding of the phrase “all costs, counsel fees, expenses…”, those terms take on more specialized significance when used in a litigation context. “All costs” does not necessarily denote the scale of costs to be awarded; in fact, the successful side in a court application is awarded its costs, the calculation is more typically done on a partial indemnity basis.

[4] Costs are always discretionary under section 131 of the Courts of Justice Act. The Court of Appeal stated in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 OR (3d) 291, at paras 24, 26, 37, that the objective of the court in fixing costs is to award an amount that is fair, reasonable, and proportionate. This is most typically done by awarding costs on a partial indemnity basis. The object is to determine a fair amount, not an amount that reflects an exact measure of the actual costs incurred by the successful party: Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041, at para 5 (Div Ct).

[5] Using round numbers, CAPL seeks $443,700 plus disbursements and HST on a full indemnity scale. It does not say what its costs would be on a partial indemnity scale.

[6] Again using round numbers, Winterland submits that its own costs come to $150,400 on a partial indemnity scale or $245,500 on a full indemnity basis. As I calculate it, the partial indemnity amount is 61% of the full indemnity amount.

[7] The discretion to award costs is generally to be exercised in accordance with the factors set out in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party [Rule 57.01(1)(0.a)] and the amount that an unsuccessful party could reasonably expect to pay [Rule 57.01(1)(0.b)].

[8] Under the circumstances, it is fair and reasonable to calculate CAPL’s partial indemnity costs using the 61% figure employed by Winterland in presenting its own costs. The partial indemnity costs attributable to CAPL therefore come to 61% of $443,700, or $270,600. To this must be added HST in the amount of 13%, or $35,178, and disbursements of 5,450.77.

[9] Winterland shall pay CAPL costs in the all-inclusive amount of $311,228.77.

Date: October 18, 2021 Morgan J.