Court File and Parties

COURT FILE NO.: CV-20-2965-00 DATE: 2023 07 17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

2599475 Ontario Inc. Plaintiff

G. McMaster, for the Plaintiff

• and -

2549445 Ontario Inc. trading as House of Diesel Defendant

S. Mandalagiri, for the Defendant

HEARD: In writing

COSTS ENDORSEMENT

LEMAY J

[1] This matter originally came before me as a summary judgment motion in October of 2022. At that time, I determined that there should be a trial on the issue of what caused the failure of the truck engine. That question proceeded to a trial of an issue in June of this year, and I released reasons shortly thereafter (2023 ONSC 3508). I have now received costs submissions from the parties and am required to fix the costs for the trial.

Positions of the Parties

[2] The parties agree that the Plaintiff was successful in this matter. The Plaintiff seeks costs on a partial indemnity basis in the sum of $17,038.68 inclusive of HST and disbursements. These costs are sought on the basis that the Plaintiff was successful at trial, the fact that the Defendant ought to have admitted liability at the outset of the proceeding, and the Defendant’s blanket denials of the Plaintiff’s claims.

[3] The Defendant acknowledges the principle that the successful party should pay partial indemnity costs. However, the Defendant seeks a reduction in the costs payable on the basis that the Plaintiff recovered a lot less than the $200,000.00 that the Plaintiff sought and that the Defendant was successful in resisting some of the Plaintiff’s damages claims. The Defendant also argues that they had success in resisting the Plaintiff’s summary judgment motion and having the matter proceed to trial.

[4] I gave the parties the opportunity to provide costs submissions, and to reply to each other’s costs submissions. I duly received original costs submissions from both sides. However, I did not receive reply submissions from either side. They were due on July 12th, 2023. As a result, I had my judicial assistant write to the parties, remind them both that these submissions were due, and advise them that I would consider the submissions if they were received on July 14th, 2023. Nothing additional has been received, so I am proceeding with the decision on costs.

Law and Analysis

[5] Both parties agree that the successful party is usually entitled to costs on a partial indemnity basis. In addition to this fact, the other factors that the Court should consider are set out in Rule 57.01 of the Rules of Civil Procedure. Counsel for the Plaintiff points to the following factors as being the most relevant:

a) The apportionment of liability b) The conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding. c) Whether any step in the proceeding was improper, vexatious or unnecessary or taken through negligence, mistake or excessive caution. d) A party’s denial or refusal to admit anything that should have been admitted.

[6] In respect of all four of these factors, the Plaintiff argues in essence that the Defendant ought to have admitted liability for this claim at the outset. While the Defendant was unsuccessful, the fact that a Defendant does not concede a claim is not a basis for awarding costs. The fact that the Defendant lost the claim is sufficient to trigger partial indemnity costs.

[7] I then turn to the quantum of costs sought by the Plaintiff. Those costs are prima facie reasonable. I reach that conclusion for two reasons. First, the Defendant’s bill of costs actually shows costs that are higher than the costs sought by the Plaintiff. Second, this was an action that involved discoveries, a summary judgment motion and two days of hearing viva voce evidence. There were also expert witnesses called.

[8] The final issue that I must deal with is the question of whether there should be any reductions in the costs either because the Plaintiff did not recover the full $200,000 that it sought or because of the fact that the Plaintiff did not succeed in all of its claims for damages.

[9] The first issue is easily dealt with. The mere fact that the Plaintiff recovered less than the full claim available under the Simplified Rules is not a reason to reduce the costs that the Plaintiff is otherwise entitled to.

[10] The second issue produces a different result. The Plaintiff did advance claims for damages that were duplicative, unjustified, and written submissions were required to address these issues. The Defendant should be entitled to a very modest reduction in the costs payable to take this issue into account. On that point, I would note that there is no basis to support the Defendant’s position that at least some costs should be awarded in this matter. The Plaintiff was successful and is entitled to recover costs.

Conclusion

[11] For the foregoing reasons, the Defendant is to pay costs to the Plaintiff in the sum of $15,000.00 inclusive of HST and disbursements. Those costs are to be paid within thirty (30) days of today’s date.

LEMAY J

Released: July 17, 2023