Court File and Parties
Court File No.: CV-21-0094-00 Date: 2025-08-21 Superior Court of Justice - Ontario
Re: McAsphalt Industries Limited, Applicant
And: City of Thunder Bay, Fort William First Nation and Fort William First Nation Development Corporation, Respondents
Before: Brochu J.
Counsel:
- Applicant not attending
- A. M. McKitrick, Counsel for the City of Thunder Bay
- D. Zulianello, Counsel for the Fort William First Nation and Fort William First Nation Development Corporation
Heard: Written Submissions
Costs Endorsement
Overview
[1] The City of Thunder Bay (the "City") brought a motion seeking an order compelling the Fort William First Nation and Fort William First Nation Development Corporation (the "FWFN Respondents") to comply with the Request to Inspect Documents served by the City on December 4, 2024, as well as an order holding that the deemed undertaking rule would not apply to the documents to be inspected.
[2] The FWFN Respondents were not opposed to the production for inspection of the 2017 Settlement Agreement. They opposed the production for inspection of the ATR Applications.
[3] The FWFN Respondents maintained that the deemed undertaking rule would apply to all documents inspected. The City disagreed and sought a ruling from this Court that the deemed undertaking rule would not apply.
[4] In my decision delivered on June 30, 2025, with reasons at McAsphalt Industries Ltd. v. City of Thunder Bay et al., 2025 ONSC 3893, I found that the ATR Applications were not to be produced and that the City was bound by the deemed undertaking rule in relation to the inspection of the 2017 Settlement Agreement: see paras. 56-57.
Parties' Position
[5] The FWFN Respondents submit that they were wholly successful in opposing the City's motion and should be awarded costs on a partial indemnity basis.
[6] It is advanced that the motion could have been avoided had the City simply accepted the position of the FWFN Respondents prior to the bringing of the within motion.
[7] Counsel for the FWFN Respondents has filed a Costs Outline and Bill of Costs, setting out partial indemnity fees of $9,863.08, substantial indemnity fees of $14,780.44, and full indemnity fees of $16,419.57.
[8] The Costs Outline shows that both Mr. Zulianello, who has 22 years of experience, and Ms. Somerville, who has 1 year of experience, worked on the file. It includes preparation for costs and submissions.
[9] The Costs Outline also shows modest fees for a licensing candidate and for clerk time.
[10] The City acknowledged that the FWFN Respondents were more successful than not on the motion.
[11] It is the City's position that much of the work and time expended will be useful for the steps leading to and the hearing of the Application. It also states that time is being claimed by two lawyers to do much of the similar tasks, and that it should be reduced.
[12] Counsel for the City suggested that a fair and reasonable costs award is of $3,000.00 on a partial indemnity basis.
[13] The City did not file a Costs Outline.
Legal Consideration and Analysis
[14] An award of costs is a matter in the discretion of the judge by virtue of s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA").
[15] Rule 57.01 allows the court to consider "any other matter relevant to the question of costs." Read in conjunction with s. 131 of the CJA, the court therefore has wide discretion.
[16] Costs hearings are a summary proceeding and not a precise mathematical exercise.
[17] The court must take into account the principle of proportionality set out in r. 1.04(1.1) of the Rules and the overriding principle of reasonableness discussed in Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291 (C.A.), at 302.
[18] This matter was not complex and of a procedural nature. Notwithstanding the nature of the motion, I acknowledge that it was rendered somewhat convoluted given the intermingling of the motion, the outstanding motion to be brought to convert this matter into an action, and the reference in the materials to other litigation involving these and other parties.
[19] I find that the FWFN Respondents did make efforts to resolve the issues.
[20] I do not agree with the position of the City that the FWFN Respondents only agreed to the inspection of the 2017 Settlement Agreement and not its production. It was clear during the submissions made by counsel for the FWFN Respondents that there was no issue in providing a copy, noting that r. 30.04(7) specifically provides for the copying of a document produced for inspection, at the inspecting party's own expense.
[21] The City submits that a fair and reasonable costs award is $3,000.00, calculated on a partial indemnity basis. However, they do not provide a comparison as to what was expended on their end.
[22] This Court has previously noted that there is no requirement that an unsuccessful party who is not seeking costs must file a bill of costs, although it is preferable that they do so. To attack the quantum of costs of the successful party as excessive, without producing one's own Bill of Costs is "no more than an attack in the air": Shaw J., in Man-Shield (NWO) Construction Inc. v. Macdonald, 2017 ONSC 684, at para. 41, citing Winkler J., as he then was, in Risorto v. State Farm Mutual Automobile Insurance Co., 64 O.R. (3d) 135 (S.C.).
[23] I find that the hourly rates of $395.00 for Mr. Zulianello, with 22 years of experience and $200.00 for Ms. Somerville with 1 year of experience are within a reasonable range.
[24] There is likely some duplication of time between senior and junior counsel. It is noted that this is not a matter that required the attendance of two counsel and a law student at the hearing. Although it is encouraged and a great learning opportunity to junior counsel and law students, it should not come at the costs of the opposing party.
Costs Order
[25] The FWFN Respondents shall have their costs from the City on a partial indemnity scale fixed at $6,000.00 inclusive of fees, disbursements, and HST.
Brochu J.
Date: August 21, 2025