Court File and Parties

COURT FILE NO.: CV-21-00669855-0000 DATE: 20230502 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: COSTCO WHOLESALE CORPORATION, Applicant AND: TICKETOPS CORPORATION, Respondent

BEFORE: VERMETTE J.

COUNSEL: Matthew P. Sammon and Nikolas De Stefano, for the Applicant Nancy J. Tourgis and Melvyn L. Solmon, for the Respondent

HEARD: In writing

Endorsement as to Costs

[1] On January 23, 2023, I released Reasons for Judgment (2023 ONSC 573) granting the Application of Costco Wholesale Corporation (“Costco”) to enforce arbitral awards and a judgment on costs of the United States District Court (Western District of Washington at Seattle). I also dismissed the motion of TicketOps Corporation (“TicketOps”) for an order converting the Application into an action.

[2] The parties were not able to agree on costs and have delivered costs submissions.

Positions of the parties

a. Position of Costco

[3] Costco seeks costs on a partial indemnity scale in the all-inclusive amount of $65,000. It states that this represents 60% of its full indemnity costs ($104,881.47). Costco submits that the amount sought is fair and reasonable considering Costco’s success on the Application and motion.

[4] According to Costco, the Application was brought because of TicketOps’ obstinance and refusal to submit to three binding decisions in the United States. It argues that TicketOps’ refusal to abide by those decisions was completely unjustified and, as a result, TicketOps raised frivolous defences throughout.

[5] Costco submits that the following factors set out in Rule 57.01 of the Rules of Civil Procedure militate in favour of this Court granting the costs sought by Costco: (a) the amount claimed and recovered and the importance of the issues; (b) the complexity of proceedings; and (c) TicketOps’ conduct, more particularly TicketOps’ insistence on obtaining irrelevant evidence to support its attempt at relitigating the merits of the arbitration.

b. Position of TicketOps

[6] TicketOps does not dispute Costco’s entitlement to an award of costs and it agrees that the costs of the Application should be on a partial indemnity scale. However, its position is that costs should be fixed in the amount of $50,000 plus HST (i.e., $56,500). TicketOps submits that such an amount is fair and reasonable and within the expectations of the parties in all of the circumstances.

[7] TicketOps takes issue with the characterization of its position as obstinate or that its defence of this Application was in any way frivolous. It argues that it was open for TicketOps to seek the assistance of the Ontario Court in determining whether or not the judgment in Washington should be enforceable against TicketOps in Ontario. TicketOps submits that its conduct in the Application did not lengthen the hearing of the Application and did not lead to additional costs to Costco.

[8] TicketOps states that it was not seeking to obtain irrelevant evidence, nor was it attempting to re-litigate the merits of the arbitration. Its position is that Costco’s decision to issue two claims at the end of 2021 complicated the issues and required additional requests for documents and examination.

[9] TicketOps does not argue with the time spent by Costco’s lawyers, but it submits that their hourly rates are higher than reasonably expected and exceed a fair and reasonable amount.

[10] TicketOps’ costs outline totals $52,250.72 on a partial indemnity basis. The total number of hours spent by TicketOps’ counsel exceeds the total number of hours spent by Costco’s counsel.

Discussion

[11] Given that there is no dispute regarding entitlement to costs and the scale of costs, the only issue for this Court is quantum. In this regard, the main point of disagreement between the parties appears to be with respect to the hourly rates of Costco’s lawyers. In my view, it is unnecessary to address the issue of the conduct of the parties during the litigation because the appropriateness of the amount of time spent by counsel is not in dispute.

[12] I agree with TicketOps that the hourly rates of some of the lawyers for Costco, in particular the junior lawyers, are higher than what an unsuccessful party could reasonably expect. Accordingly, I find that it is appropriate to apply a small reduction to the costs sought by Costco to ensure the overall reasonableness of the costs award.

[13] Taking the foregoing into account, as well as the factors set out in Rule 57.01(1) of the Rules of Civil Procedure and the reasonable expectations of the parties, I find that the fair and reasonable award of costs in favour of Costco for the Application and the motion is on a partial indemnity basis in the all-inclusive amount of $60,000.00. In my view, this is an amount that TicketOps should reasonably have expected to pay in the event that it was unsuccessful on the Application and the motion.

[14] The costs are to be paid by TicketOps to Costco within 30 days.

Vermette J. Date: May 2, 2023