Court File and Parties

Court File No.: CV-25-00034721
Ontario Superior Court of Justice

Between:
Titan Tool & Die Limited (Applicant)
– and –
Unifor and its Local 195, Emile Nabbout, Sarkis Gaspar, John Doe 1, and John Doe 2 (Respondents)

Applicant Counsel: Dante Gatti and Jeffrey A. Patterson
Respondent Counsel: Anthony Dale and Farah Baloo

Heard: April 3, 2025

Costs Endorsement

Jasminka Kalajdzic

Background

[1] In reasons for decision released on April 3, 2025 and reported at 2025 ONSC 2162, I granted an interlocutory injunction to restrain a blockade at the entrance of the Applicant’s premises. I invited the parties to make written submissions on costs if they could not come to an agreement.

[2] I received written submissions from the parties. The Applicant seeks costs totaling $17,707.05 on a substantial indemnity basis because Titan was successful and the blockade in question went beyond a normal ‘lawful’ labour dispute. Conversely, the Respondents submit that no costs should be awarded because the blockade had ended by the time of the hearing and the injunction, therefore, was unnecessary.

[3] For the brief reasons set out below, I order the Respondents to pay costs to the Applicant on a partial indemnity basis in the amount of $14,000.00, inclusive of fees, disbursements and HST.

Legal Principles

[4] Pursuant to s. 131(1) of the Courts of Justice Act, RSO 1990, c C.43, costs are in the discretion of the court. Consideration of costs is to be guided by r. 57.01 of the Rules of Civil Procedure, RRO 1990, Reg 194. The fundamental purposes of the costs rule, as restated in Serra v. Serra, 2009 ONCA 395, para 8, are: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.

[5] Also relevant is r. 1.04(1.1), which provides that “[i]n applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.”

[6] Although not raised by either party in their submissions, there is some authority for the proposition that costs of a successful interlocutory injunction motion should be reserved to the trial judge because “…there has been no final determination of the rights of the parties, but rather an order to protect the plaintiff’s position pending trial”: Robert J. Sharpe, Injunctions and Specific Performance (Toronto: Thomson Reuters Canada Ltd., 2024) (loose-leaf 2024-Rel. 1), at p. 2-178. See also Amphenol Canada Corp. v. Sundaram, 2019 ONSC 2226, para 7. Other courts have taken the view that justice does not require a departure from the rule that costs should be payable forthwith: Accreditation Canada International v. Guerra (c.o.b. Accreditation Council Canada), 2017 ONSC 932 (Div. Ct.).

[7] Titan sought the injunction in the context of an application for damages resulting from the Respondents’ alleged interference with commercial relations. However, the blockade that constituted the interference lasted one day, and no further protests have taken place at Titan’s premises since the hearing. As a result, the circumstances are similar to those in Verge Insurance Brokers Ltd. v. Sherk, 2013 ONSC 7855, para 262, in which Quinn J. held that a plaintiff’s costs on an injunction motion are to be paid forthwith if the injunction component of the action is effectively spent and if there is nothing meaningful left to litigate in respect of that form of relief.

Discussion

[8] In considering the factors at r. 57.01, and by reference to the paragraph numbering in that rule, I find as follows:

(0.a) Four lawyers and an articling student worked on this matter for the Applicant. Their hourly rates and number of hours spent on the motion are reasonable. The Respondents submit that the number of lawyers on the file was excessive. Having reviewed the dockets, however, I am satisfied that there was no duplication of effort and only the two lead lawyers billed for their time spent attending the hearing.

(0.b) The Respondents suggest that they could not have reasonably expected a $17,000 costs order. Although the Respondents’ own costs were only $7,000 and the draft order filed with the Application Record requested costs of $7,500, I am not persuaded that costs under $20,000 were outside of the union’s expectations. Cost awards of $81,000 and $75,000 were awarded in Air Canada Pilots Assn. v. Air Canada Ace Aviation Holding Inc., 2007 20093 (ON SC), 31 B.L.R. (4th) 155 (Ont. S.C.), and Catalyst Capital Group Inc. v. Moyse, 2015 ONSC 1146, respectively, inclusive of fees, GST, and disbursements. Additional legal issues were also raised by the Respondents in their factum, which warranted additional research and preparation after the draft order was served. Under all of the circumstances, I find that this factor favours the Applicants.

(a) Not applicable.

(b) The Applicant was entirely successful.

(c) All parties agree that the matter was of only moderate complexity. The Respondents, however, argue that the arguments were “to some extent rote” in that they are common in similar injunction cases. While the arguments may have been rote for union counsel who specializes in this area of the law, I accept as reasonable the hours spent by the Applicant to research both the law of civil injunctions and the additional preliminary issues raised by the Respondents in their factum, which I addressed in my reasons at paras. 28-34.

(d) The proceeding was important. The Applicant was concerned about further disruption to its business, which could have led to significant financial and reputational harm vis-à-vis its U.S.-based customers.

(e) Both parties agree that neither of them materially lengthened the hearing.

(f) The Respondents submit that the injunction application was an unnecessary step in the proceeding because the blockade had ended by the time the application was argued and because union representatives had given Titan verbal assurances that no other blockades would occur. I addressed this argument in my reasons at para. 68, where I stated: “Without a commitment in writing, and in light of ongoing tensions over rising tariffs, I find that the risk of future obstructions similar to those on March 31, 2025 is real and constitutes irreparable harm.” The same finding is a full answer to the Respondents’ argument under r. 51.07(f).

(g) – (h.1) Not applicable.

(i) The underlying conduct of the Respondents that gave rise to the injunction application was deliberate and unlawful behaviour. It is also true that the protest was not a typical legal strike action. However, I do not agree with the Applicant that a short-lived political protest is an exceptional circumstance that warrants substantial indemnity costs. As Mr. Dale points out in his submissions, even in a case cited by the Applicants that involved ongoing unlawful activity in the form of threats and assaults, substantial indemnity costs were not awarded: Bank-Strox Renovation Inc. v. Laborers’ International Union of North America, Local 183, 2021 ONSC 6945, paras 24-26.

Order

[9] In consideration of the applicable rules and factors set out above, I exercise my discretion to award costs to the Applicant fixed at $14,000.00, inclusive of fees, disbursements and HST, payable by the Respondents within 30 days.

Jasminka Kalajdzic

Released: June 18, 2025