Court File and Parties

COURT FILE NO.: CV-22-0861-0000 DATE: 2024 07 24

SUPERIOR COURT OF JUSTICE – ONTARIO 491 Steeles Avenue East, Milton ON L9T 1Y6

RE: Evergreen Community (Burlington) Ltd., (Plaintiff/ Moving Party) v. FirstCanada ULC, (Defendant/ Respondent)

BEFORE: Justice Conlan

COUNSEL: Richard Macklin and Meaghan Coker, Counsel for the Plaintiff/ Moving Party, Evergreen Community (Burlington) Ltd. Rosalind H. Cooper, Counsel for the Defendant/ Respondent, FirstCanada ULC

DATE: Heard, In Writing

COSTS ENDORSEMENT

[1] The Plaintiff, Evergreen Community (Burlington) Ltd. (“Evergreen”), brought a motion for an injunction and for an order for inspection under Rule 32.01(1) of the Rules of Civil Procedure. Evergreen wanted access to the property of the Defendant, FirstCanada ULC (“FirstCanada”), to conduct groundwater and soil testing. Succinctly put, Evergreen’s position was that FirstCanada is responsible for contamination that has flowed onto the Evergreen property, jeopardizing Evergreen’s proposed residential development project in Burlington, Ontario.

[2] This Court dismissed Evergreen’s motion, both with regard to the injunction and the order for inspection.

[3] Unable to resolve the issue of costs, the parties have filed written submissions.

[4] FirstCanada is entitled to costs. The only question is how much. FirstCanada asks for costs in the amount of $213,000.00 - $210,696.94 in fees and disbursements, on a mixed partial/substantial indemnity scale, plus $2303.06 for the written costs submissions. Evergreen suggests that FirstCanada ought to receive its partial indemnity costs in the amount of $142,453.91.

[5] It is undisputed that, in terms of actual legal fees, the figure in Evergreen’s Costs Outline is about $50,000.00 higher than that in FirstCanada’s Costs Outline, and therefore, no complaint could be made by Evergreen about the hourly rates, or the time spent by counsel for FirstCanada.

[6] The major source of disagreement between the parties is the effect of FirstCanada’s offer to settle dated October 20, 2023. As the footnotes on page 1 of FirstCanada’s Costs Outline indicate, FirstCanada is seeking costs on a substantial indemnity scale for everything post-October 20, 2023.

[7] In an effort to make an award of costs that is fair, just, reasonable, and proportionate, taking into account the goals of modern costs awards – to at least partially indemnity successful litigants, and to encourage settlement, and to address bad or inappropriate conduct by litigants, this Court is entitled to consider all settlement offers made by both sides, including (as in the case of the October 20, 2023 offer to settle) non-Rule 49 offers.

[8] I agree with Evergreen, however, that the Court ought not to order costs in favour of FirstCanada on anything but a partial indemnity scale.

[9] Both sides made settlement offers. It is true that FirstCanada made several different offers to settle the litigation as a whole, and it is true that its offer to settle dated October 20, 2023, on its face, appears quite reasonable. That offer, based on a written work plan prepared by Dillon Consulting Limited, which plan was attached to the offer, proposed excavation work on Evergreen’s property in order to address any concerns about contamination. FirstCanada would have been responsible for ensuring the completion of the work. As Ms. Cooper’s letter dated October 20, 2023 states, however, the specific terms were to be documented in a settlement agreement. Presumably, that settlement agreement would have included a Release, one similar to that contained in the draft Minutes of Settlement proposed by FirstCanada later, in March 2024. Consequently, Evergreen’s acceptance of the October 20, 2023 offer to settle extended by FirstCanada would have meant that Evergreen would have had to abandon any request for damages arising from contamination that was not already in existence on its property; in other words, any future spills/migration of contamination from the FirstCanada property onto the Evergreen property would not have been actionable. In the circumstances, therefore, as things stood in October 2023, I do not think that Evergreen can be blamed for not accepting the said offer to settle.

[10] FirstCanada shall be awarded its costs on a partial indemnity scale throughout, plus $2303.06 for the written costs submissions.

[11] The quantum of costs is calculated as follows, with reference to FirstCanada’s Costs Outline. The difference between 90% (substantial indemnity) of FirstCanada’s actual post-October 20, 2023 fees ($113,357.72) and 60% (partial indemnity) of those fees ($75,571.82) amounts to $37,785.90. $210,696.94 less $37,785.90 equals $172,911.04. And $172,911.04 plus $2303.06 equals $175,214.10.

[12] This Court orders that Evergreen shall, within thirty (30) calendar days after July 26, 2024, pay costs to FirstCanada in the total amount of $175,214.10.

[13] To address the two final points made by Evergreen in its written costs submissions, first, there will be no further reduction on the basis that FirstCanada allegedly failed to deliver its Costs Outline until after the Court released its decision on the motion. Evergreen has filed a Notice to the Profession that post-dates the hearing of the motion and the Court’s decision on the motion, but more important, it is unknown whether either side complied with the expectation to try to resolve the quantum of costs before the hearing of the motion or the requirement to attend the hearing of the motion with its Costs Outline in hand. Second, I am not satisfied that the “Dillon account” (approximately $14,000.00) ought to be removed from FirstCanada’s recoverable disbursements. I read the out-of-court examination transcript excerpt filed by Evergreen. I disagree that it supports the conclusion that the Dillon report played no part in the hearing of the motion or the preparation therefor.

Conlan J. Released: July 24, 2024