Court File and Parties

Court File No.: CV-23-00014573-0000
Date: 2025-06-10
Ontario Superior Court of Justice

Between:
Howard Walton operating as Norseman Racing Stable, Plaintiff
and
Fort Erie Live Racing Consortium, Defendant

Plaintiff Counsel: S. Wagman
Defendant Counsel: D. Thomas

Heard: By written submissions
Judge: J. R. Henderson

Costs Decision

Introduction

[1] The trial of the plaintiff’s claim against the defendant was conducted under the simplified procedure over the course of two court days. Pursuant to written reasons, I dismissed the plaintiff’s claim in its entirety. The defendant now requests its costs of the action.

[2] The defendant delivered written costs submissions within the time schedule set out in my decision, but the submissions from the plaintiff were late. Despite the tardiness of the plaintiff, I am going to accept and consider the written costs submissions of the plaintiff. In my view, the best practice is, whenever possible, to consider fulsome submissions from all parties before making a decision.

[3] The defendant was entirely successful in this action and therefore is entitled to its costs.

Scale of Costs

[4] The usual rule is that costs will be awarded on a partial indemnity basis. In this case, the defendant asks for its costs on a substantial indemnity basis, primarily relying upon the defendant’s offer to settle dated March 7, 2025, whereby the defendant offered to agree to a dismissal of the plaintiff’s claim without costs, but with costs from the date of the offer on a partial indemnity basis.

[5] In my view, the defendant’s offer does not entitle the defendant to substantial indemnity costs. Generally, an offer of complete capitulation by the opposing party does not trigger an entitlement to a higher scale of costs. In this case, the defendant’s offer is evidence that the defendant has attempted to act reasonably, but it does not change the appropriate scale of costs. I will order costs in this case on a partial indemnity basis.

Quantum of Costs

[6] As to the quantum of costs, I take into account the fact that this was a relatively short simple trial. The issues were not particularly complicated. The amount of the claim was small. Most of the facts were not in dispute. Moreover, because the matter proceeded under the simplified procedure, the direct evidence for all the witnesses was received by way of affidavit.

[7] I acknowledge that the issues at stake were important to the parties, particularly to the defendant. It was necessary for me to consider the relationship between horse track owner and racehorse owner in light of the legislation and the long-standing practices in the industry. Ultimately, I was required to make a decision as to whether and when a duty of care exists. This decision was therefore important to those in the industry.

[8] The defendant’s docketed time entries show a calculation of partial indemnity fees of $21,848.40, plus HST, plus disbursements (including HST) of $2,247.83. Although there is some overlap in the work done by senior and junior lawyers in the defendant’s law firm, I have no serious concern about the way in which the work was delegated within the law firm. The trial itself and most of the trial preparation was handled by a lawyer with three years’ experience.

Legal Framework

[9] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides the court with a broad overarching authority to make costs orders. Further, rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides a list of factors to consider, including offers to settle, expectations of the parties, amounts in issue, complexity, importance of the issues, conduct lengthening or shortening the process, improper conduct, refusal to admit, and any other factors.

[10] Overall, the goal of a costs award, as discussed in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at paras. 24-26, is to fix an amount that is fair and reasonable for the unsuccessful party to pay to the successful party in the circumstances. Moreover, the costs award should be within the reasonable expectations of the parties: see Boucher at para. 38.

Conclusion and Order

[11] In the present case, I have considered that this was a short simple trial, that the amount claimed was small, and that the trial was conducted by a junior lawyer. Further, the action was under the simplified procedure which is intended to assist the parties in accessing justice by reducing costs. Moreover, most of the evidence was introduced at trial by affidavit. All of these factors suggest that the parties should reasonably expect that costs would be limited.

[12] For these reasons, I will award partial indemnity costs in the amount of $15,000, plus HST of $1,950, plus disbursements in the amount of $2,247.

[13] Therefore, I hereby order that the plaintiff pay to the defendant its costs fixed at a total of $19,197, payable within 90 days.

J. R. Henderson

Date Released: June 10, 2025