2018 ONSC, 2018 ONSC 5802

SUPERIOR COURT OF JUSTICE - ONTARIO RE: The Manufacturers Life Insurance Company v. Parc-IX Limited COURT FILE NO.: CV-17-587537 CITATION: 2018 ONSC 5802 MOTION HEARD: 2018 06 27 BEFORE: MASTER R.A. MUIR COUNSEL: Lisa Constantine for the applicant, The Manufacturers Life Insurance Company Bradley Vermeersch for the respondent, Parc-IX Limited SUPPLEMENTARY REASONS FOR DECISION [1] These supplementary reasons for decision arise from a refusals motion brought by The Manufacturers Life Insurance Company(“Manulife”) and heard by me on June 27, 2018. [2] I released my reasons for decision on June 28, 2018.

As part of that decision I made an order requiring all of the refusedquestions in issue to be answered by Parc-IX Limited (“Parc-IX”). I also requested written costs submissions. I have now received andconsidered those submissions. [3] Manulife seeks its partial indemnity costs in the amount of $9,500.00. Parc-IX suggests that the requested costs are excessiveand should also be subject to a set-off for costs incurred by Parc-IX on its refusals motion.

Parc-IX also submits that the costs of thismotion should be determined by the application judge. [4] When dealing with costs, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessfulparty who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, (ON CA),[2002] OJ No. 4495 (CA) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, (ON CA), [2004] OJ No. 2634 (CA) at paragraph 26. In Davies v.

Clarington (Municipality), 2009 ONCA 722 the Court of Appealstated as follows at paragraph 52: Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonableamount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. [5] These are the factors and principles I have considered in determining the costs of this motion. [6] Manulife was entirely successful on its motion and is entitled to costs.

In my view, the quantum of costs requested by Manulifeis fair and reasonable for a motion of this nature. The motion involved six categories of refusals and 19 questions. The materials wereextensive. Written argument was necessary along with significant submissions from counsel at the hearing of the motion. The underlyingsubject matter of this dispute is relatively complex and involves a valuable commercial property and a related lease. The parties are verysophisticated and both sides have retained capable and experienced counsel.

I also note that Parc-IX states that its costs incurred on itsmotion were approximately $6,000.00. The Parc-IX motion involved only one issue and no oral argument was required. Manulife’s costs

of $9,500.00 should not be a surprise to Parc-IX. [ 7 ] I do agree with Parc-IX that there should be some reduction in the costs awarded to Manulife as a set off against costs incurred by Parc-IX on its motion. Manulife only agreed to the relief Parc-IX was seeking on the day before the motion was to be heard. However, as I have stated above, the Parc-IX motion was not as complex as the Manulife motion and no oral argument took place. I have concluded that $6,000.00 is excessive for the Parc-IX motion when compared to the Manulife motion.

In my view, a set-off in the amount of $4,500.00 is therefore fair and reasonable in these circumstances. [ 8 ] I see no reason to depart from the usual practice of ordering the costs of an interlocutory motion to be paid forthwith. Rule 57.03(1) requires such an order unless a different order would be more just. There is no suggestion here that such a costs order would deny Parc-IX its day in court due to an inability to pay. The fact that the refusals in issue may ultimately prove to be irrelevant to the outcome of the applications is an argument that could be made on every refusals motion.

Rule 57.03(1) is designed, in part, to ensure parties consider their positions carefully before deciding to bring or oppose an interlocutory motion. [ 9 ] I have therefore concluded that it is fair and reasonable for Parc-IX to pay Manulife’s costs of this motion on a partial indemnity scale fixed in the amount of $5,000.00, inclusive of HST and disbursements. These costs shall be paid by October 31, 2018. ___________________________ Master R.A. Muir DATE: 2018 10 01