Ontario Superior Court of Justice

Court File No.: CV-22-00691787-0000
Date: 2025-05-15

Between

Bruce G. Johnston and Judith A. Walker, Plaintiffs / Responding Parties
– and –
Dave Griffiths as the representative of all members of the United Association of Journeyman and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, Terry Snooks as the representative of all members of the United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and Joe Di Maso as the representative of all trustees of the Plumbing and Pipefitting Workers Local 46 Pension Plan, Defendants / Moving Parties

Appearances:
Richard J. Nixon and Titus Totan, for the Plaintiffs / Responding Parties
David Rosenfeld and Appollonia Mastrogiacomo, for the Defendants / Moving Parties

Heard: In Writing

Costs Endorsement

Callaghan J.

Introduction

[1] This is the costs decision in respect of a successful summary judgment motion. The defendants were successful in having this action dismissed based on the ultimate limitation period. The defendants seek costs both for the motion for summary judgment and the now dismissed action.

[2] The defendants seek fees on a partial indemnity basis. For the summary judgment motion, the defendants seek $86,177 for fees, HST of $11,203 and disbursements of $1,257. The total amount requested is $98,637. For the remainder of the action, the defendants seek fees of $42,017, plus $5,426 of HST and $537 in disbursements for a total of $48,053.

[3] The plaintiffs filed a bill of costs. The plaintiffs’ bill of costs requested fees for the summary judgment motion of $82,546 and $93,277.55 when HST is added.

Legal Principles

[4] Costs are a matter of discretion: Section 131(1) of the Courts of Justice Act, RSO 1990, c C.43. As to which side is entitled to costs, absent special circumstances, “costs follow the event”: Bell Canada v. Olympia & York Developments Ltd. (1994), 111 D.L.R. (4th) 589 (Ont. C.A.); Yelda v. Vu, 2013 ONSC 5903, para. 11, leave to appeal refused, 2014 ONCA 353; St. Jean v. Cheung, 2009 ONCA 9, para. 4.

[5] In this case, there is no dispute that as the successful party, the defendants are entitled to costs of the motion and the now dismissed action. There is no reason for costs to be assessed other than on a partial indemnity scale.

[6] Costs are to be assessed having regard to the criteria set out in Rule 57.01 of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”). In fixing costs, the objective is “to fix an amount of costs that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances of the case”: Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, para. 61, citing Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.).

Analysis

[7] In this case, the defendants utilized four lawyers. While there are general headings in the bill of costs of hours spent by category for each lawyer, there is no detail as to what each lawyer actually did (i.e. no individual docket entries). As the plaintiffs note, this makes it difficult to assess whether the work of each lawyer was reasonable, whether work was duplicated or assigned inappropriately. I accept that some caution must be exercised in assessing the costs where there is a lack of detail: Subramaniam v. Metamore Inc., 2024 ONSC 1902. In fairness, I note the plaintiffs’ bill of costs also lacks granular detail, such as individual docket entries. Nonetheless, the exercise here is to fix the defendants’ costs, not the plaintiffs. I also note that the court is fixing costs and not embarking on an assessment. Nonetheless, it makes it difficult to assess the reasonableness of the hours worked by the respective lawyers which is required when considering the principle of indemnity: Rule 57.01 (0.a).

[8] The action was important to both sides: Rule 57.01 (d). There was a sizable amount of money at stake should the plaintiffs succeed, being in the range of $3.75 million. However, while the legal issues were modestly complex, the underlying facts were largely driven off the correspondence over the years and evidence of Mr. Johnston and the defendants’ deponent. This was not an overly involved set of facts and the facts were not a matter of any great dispute. As such, this case was, at most, of moderate complexity, largely due to the application of the facts to the law: Rule 57.01 (c). Moreover, there were no facts that ought to have been admitted that would have shortened or otherwise lengthened this proceeding: Rule 57.01 (g).

[9] The purpose of the motion was to shorten the proceeding by considering only the ultimate limitation period and not the basic limitation period. This was the direction of Justice Myers at the case conference that set the parameters of the motion. As it happened, his direction was prescient. There were subsequent case conferences where the defendants sought to expand the motion to include the basic limitation period. That request was denied. The plaintiffs submit that the case conferences were an unnecessary expense and caused the plaintiffs to incur expenses, although there is a corresponding lack of detail regarding these costs: Rule 57.01(e).

[10] The defendants raised several issues to justify the fees. I agree with much of what the plaintiffs state in response in paragraph 9 of their submissions. Nonetheless, the objective is to assess what is a reasonable amount for the motion and the action. The issues raised and addressed in paragraph 9 by and large do not assist in this assessment.

[11] In short, this assessment is about whether the costs requested are reasonable, proportionate and in an amount that the plaintiffs should expect having lost the motion and had the action dismissed. Having regard to the factors above, in my view, a reasonable costs award is $80,000, all-inclusive, for the motion and action.

[12] This amount is proportionate to the proceeding, particularly as it relates not only to the matters in issue but also to the fact that this summary judgment motion was intended to be a straightforward two-hour motion to resolve the litigation at an early stage of the proceeding. In short, it was intended to be a swift and inexpensive resolution to this proceeding. This amount also takes into consideration any issues with the lack of detail in the defendants’ bill of costs and that portion of the costs associated with the case conferences. Moreover, given the plaintiffs’ own costs, it is an amount which the plaintiffs ought to have reasonably expected in the circumstances.

[13] Finally, it is necessary to “step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable:” Apotex Inc., at para. 60, applying Restoule v. Canada (Attorney General), 2021 ONCA 779, para. 356. Having considered the factors above and having regard to the nature of this litigation, I am of the view that the all-inclusive amount of $80,000 is fair and reasonable in the circumstances in respect of both the summary judgment motion and the now dismissed action.

Disposition

[14] The defendants are entitled to a costs award as against the plaintiffs in the amount $80,000, all-inclusive, plus post-judgement interest pursuant to the Courts of Justice Act, RSO 1990, c C.43.

Callaghan J.
Released: May 15, 2025