2013 ONSC 7935, 2013 ONSC 7935

CITATION : 1623242 Ontario Inc. v. Great Lakes Copper Inc . 2013 ONSC 7935 COURT FILE NO.: 571/12 DATE: 2013-12-23 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) 1623242 ONTARIO INC. ) ) Gregory Govedaris , for the Plaintiff ) Plaintiff ) ) - and - ) ) GREAT LAKES COPPER INC. and 3072453 NOVA SCOTIA COMPANY Defendants ) ) ) ) ) ) Charles W. Skipper , for the Defendant Great Lakes Copper Stuart R. MacKay , for the Defendant 3072453 Nova Scotia Company ) ) ) ) ) HEARD: January 8, 2012, at Guelph, Ontario Price J.

Costs Endorsement Nature of the Proceeding [ 1 ] When 1623242 Ontario Inc. (“162”) learned, after it had bought an industrial property in Fergus from Wolverine Tube (Canada) Inc. (“Wolverine Tube 1”), that the property was contaminated by PCB’s, and the Ministry of the Environment ordered the present and former owners to remove the contaminants, 162 stopped making payments on a vendor-take-back mortgage it had given to Wolverine Tube 1, which that company had later assigned to 3072453 Nova Scotia Company (“307”). 162 also refused to pay the costs of the clean-up performed by Great Lakes Copper Inc. (“GLC”).

It asserted that both 307 and GLC are related to Wolverine Tube 1 and sued them for fraud. 307, in turn, began a foreclosure action against 162 in London, Ontario, and GLC began construction lien actions against it in Guelph. [ 2 ] When 162 successfully moved for an order directing that all of these actions be tried together, and that 307’s foreclosure action be transferred from London to Guelph, and 307 and GLC unsuccessfully moved for further productions from GLC before they plead to the fraud action, [1] I directed that if the parties were unable to agree on costs, they could make written submissions.

Having reviewed their submissions, I will now address the costs issue. Background Facts [ 3 ] Wolverine Tube 1 sold a property in Fergus, Ontario, to 162, and took a vendor-take-back mortgage , without disclosing that its

predecessor, Wolverine Ratcliffs Inc. (“Wolverine”), had contaminated the p roperty with PCB’s. After selling the property to 162, Wolverine Tube 1 assigned its mortgage to 307, which 162 says is related to Wolverine and Wolverine Tube 1, having the same officers and directors. 162 continued making mortgage payments to 307. T he Ministry of the Environment discovered the contamination and ordered the present and past owners to remove the contaminants.

GLC, which 162 says is also W olverine ’s successor, removed the contaminants, but charge d 162 for the clean-up , which 162 says it had not contracted for GLC to do. [ 4 ] 162 began a fraud action in Guelph against Wolverine and its successors and related companies, including GLC, alleging that they conspired to induce 162 to buy the property at an inflated price by not disclosing the contamination, and then charged it for the clean-up with a view to re-possessing the p roperty (“the fraud action”).

G LC beg a n two construction lien actions against 162 in Guelph , based on its refusal to pay it for the clean-up that GLC had done , and 307 beg a n a foreclosure action against 162 in London , based on its failure to continue making mortgage payments to it . [ 5 ] 162 moved to have its fraud action tried with GLC’s lien actions and 307’s foreclosure action, to transfer the foreclosure action from London to Guelph, and to stay enforcement of the mortgage without prejudice to 307’s right to assert its claims as a counter-claim in the fraud action.

GLC moved to require 162 to produce documents it had referred to in its Statement of Claim, to set aside any noting of GLC in default, and to permit GLC to file its Defence to 162’s Claim after the requested documents were produced. It also asked for an order amending the title of proceeding in the action by deleting certain defendants whom the parties had agreed were unnecessary.

This latter request was not opposed. [ 6 ] 162 claimed a stay of the foreclosure action and an order that the claims for liens against it be discharged but did not press its claim that the liens be discharged at the hearing. [ 7 ] I concluded that 162 had met the test under rules 6.01(1) for joining its fraud action with 307’s foreclosure action and GLC’s construction lien actions, based on the common issues of fact or law among them, and the fact that the most expeditious and least expensive determination of the issues on the merits favoured trial of the actions together, or one following the other.

It followed from this, and pursuant to s. 53(1) of the Construction Lien Act , that all of the actions had to be tried in Guelph, where the lien actions were commenced . [ 8 ] Because the motion to transfer the foreclosure action to Guelph was brought and argued with reference to Rule 13.1.02(2), I also dealt with the motion on that basis.

The balance of convenience did not favour either party, and the public interest favoured a trial in Wellington County, since the actions involved contamination of soil, which could arouse public interest, and the events took place in Fergus, where the property and community most affected by the outcome are located. The balance of convenience did not favour a trial in either Guelph or London, and injustice could result from trying the actions separately, which might give priority to the foreclosure action or construction lien actions.

I therefore directed that the foreclosure action be transferred from London to Guelph. [ 9 ] 162 applied to stay 307’s mortgage foreclosure action until 162’s fraud action against 307 was decided. Its concern was to prevent 307 from disposing of the property until 162’s challenge to the validity of the mortgage was decided. I permitted the foreclosure action to proceed but stayed enforcement of any order obtained pending the outcome of the fraud action.

This will prevent 307 from disposing of the property until the fraud action is determined, which is what 162 sought to avoid. [ 10 ] I was satisfied that the documents that GLC had requested had been produced, as required by Rule 30.04(2), and that GLC did not require them to be segregated from the remainder of 162’s productions in order to plead, particularly since GLC will have the opportunity to question 162’s representative about its documents at discovery. [ 11 ] On March 5, 2013, 307 brought a motion in London to strike 162’s pleadings in the foreclosure action, returnable March 12, 2013.

There followed an exchange of correspondence between counsel and, ultimately, the motion was adjourned pending the outcome of 162’s motion for trial of the actions together and for transfer of the foreclosure action to Guelph. On March 14, 2013, GLC brought two motions to strike 162’s pleadings in the construction lien actions. These motions were adjourned after an attendance on April 16, 2013. [ 12 ] In my reasons issued on April 30 th , I indicated that if the parties were unable to agree on costs, they could make written submissions.

In my endorsement on April 16, 2013, I invited submissions on the costs of the adjournment of GLC’s motions to strike 162’s pleadings. [ 13 ] 162 delivered submissions regarding the costs of the motions decided on April 30 th and as to its costs of the adjournment of GLC’s motions to strike 162’s pleadings on April 16, 2013. GLC delivered submissions as to the costs of the motions decided on April 30 th and submitted that it was premature to determine costs in relation to its motion to strike 162’s pleadings, as that motion has not yet been heard.

The Issues [ 14 ] The assessment of costs involves two questions, namely, whether GLC and 307 should be required to pay 162’s costs and, if so, on what scale and in what amount. Positions of the Parties [ 15 ] 162 seeks its partial indemnity costs of its motion for trial of the actions together and for transfer of the foreclosure action to Guelph and of GLC’s motion for further production in the amount of $31,099.89. It seeks a further $5,018.25 in connection with the April 16, 2013, adjournment of GLC’s motion to strike 162’s pleadings in the construction lien actions.

It therefore claims a total of $36,118.14. [ 16 ] GLC and 307 submit that there was divided success in the motions decided on April 30, 2013. They note that 162 was unsuccessful in obtaining a stay of the foreclosure action and in having the claims for lien against it discharged, and submits that costs

should be left to the discretion of the trial judge. In the alternative, they submit that the motions were of a procedural nature and that costs should be awarded on a partial indemnity scale. Additionally, they say that an award of $31,099.89, which 162 claims, being close to the $32,792.82 that Mr. Govedaris billed his client for his time, is excessive in that it would exceed even costs on a substantial indemnity scale.

They submit that an award of $4,000 would be fair and reasonable. [ 17 ] GLC submits, with regard to the costs of the adjournment of its motion to strike 162’s pleadings, that Davis Moldaver LLP had just replaced GLC’s and 307’s previous lawyers three days before the April 16, 2013, attendance, and that it consented to an adjournment of the motions as soon as its counsel became aware that the motions could not proceed on April 16 as they required a long motion hearing date. GLC submits that, at most, costs of $250 should be awarded for the adjournment.

Analysis General Principles [ 18 ] As a general principle, costs are in the discretion of the court. [2] Determining costs is not simply a mechanical exercise. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.” [3] This is a “fundamental concept in fixing or assessing costs.” [4] [ 19 ] The Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario [5] articulated the principles that govern costs assessments.

Armstrong J.A. stated: “When the court awards costs, it shall fix them in accordance with sub-rule 57.01(1) and the Tariffs…Subrule (1) lists a broad range of factors that the court may consider in exercising its discretion to award costs under s. 131 of the Courts of Justice Act .” [6] [ 20 ] The Court must, first and foremost, be fair and reasonable when exercising its discretion to award costs. As Armstrong J.A. noted in Boucher , the parties’ expectation concerning the amount of a costs award is a relevant factor to be considered.

Armstrong J.A. refrained from attempting to articulate a more detailed or formulaic approach, noting that the notions of fairness and reasonableness are embedded in the common law which judges have been applying for centuries to the facts of particular cases. [7] Factors to be Considered in Fixing Costs [ 21 ] Rule 57.01(1) contains a non-exhaustive checklist of factors that guide the Court in its reasoning when awarding costs in the exercise of its discretion under

section 131 of the Courts of Justice Act . Rule 57.01(1) provides, in part: 57.01(1) In exercising its discretion under

section 131 of the Courts of Justice Act to award costs, the Court may consider… (0.

a) the principle of indemnity , including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer; (0.

b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed ; (

a) the amount claimed and the amount recovered in the proceeding ; … (

c) the complexity of the proceeding ; (

d) the importance of the issue ; (

e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding ; (

f) whether any step in the proceeding was (

i) improper, vexatious or unnecessary , or (ii) taken through negligence, mistake or excessive caution; … any other matter relevant to the question of costs. [Emphasis added] [ 22 ] I will review the factors that I consider most relevant in arriving at the appropriate costs order in the present case.

i) Indemnity

[ 23 ] Costs normally follow the event, meaning that the court orders the unsuccessful party to pay costs to the successful party on a partial indemnity scale. [8] 162 was successful in obtaining an order for trial of the actions together, and to transfer 307’s action to Guelph, and in resisting enforcement of any foreclosure order until the outcome of its fraud action, and in resisting the defendants’ motions for further production before they plead to 162’s fraud action.

They were substantially successful in the motions and should therefore be indemnified for their costs, unless there is a compelling reason for depriving them of their costs. [ 24 ] 307 argues that success was divided on the ground that 162 was unable to obtain a stay of the foreclosure action or a discharge of the construction liens. I do not agree. 162’s objective was to have the actions tried together and to stay the effect of the foreclosure and construction lien actions until its fraud action is resolved.

It obtained a stay of any foreclosure order and an order for the trial of the remaining actions together, which achieved its objective. [ 25 ] A foreclosure order will be of little value to 307 and will do little harm to 162 until it can be enforced. The reason the foreclosure action was permitted to proceed at all was procedural, not substantive, and the ultimate determination as to 162’s liability on the mortgage will be made in the fraud action.

At the hearing of the motions, 162 did not press its claim for a stay of the foreclosure action itself or for a discharge of the construction liens, and it was evident to all the parties that, as GLC and 307 submit in their costs submissions, the motions were of a procedural, and not a substantive nature . On this basis, 162 was substantially successful. ii) Hourly Rates and Experience [ 26 ] Mr. Govedaris was called to the Bar in 1993. He had been practicing law for 20 years when he argued the motions.

He claims a partial indemnity rate of $350 per hour. [ 27 ] GLC’s lawyers, Charles Skipper and Albert Engel, were called to the Bar in 1992 and 2002, so they had been practicing law for 21 years and 11 years, respectively, when they argued the motions. Mr. Skipper’s hourly rate, according to GLC’s initial Costs Outline dated January 7, 2013, was $300 on a partial indemnity scale. Mr.

Englel’s rate was $300 on a partial indemnity scale. [ 28 ] The “Information for the Profession” bulletin from the Costs Sub-Committee of the Rules Committee (“the Costs Bulletin”) suggests maximum hourly rates (on a partial indemnity scale) of $300.00 for lawyers between 10 and 20 years experience, and $350.00 for lawyers with 20 years experience or more. [9] These limits are generally intended for the most complex and important of cases. [ 29 ] Mr. Govedaris’ hourly rate of $350.00 is reasonable, having regard to his 20 years experience and the guidelines in the Costs Bulletin.

I note that while GLC’s lawyer, Mr. Skipper, who has 21 years experience, claims a partial indemnity rate of $300, Mr. Engel, who has ten years less experience, claims the same rate. Based on the guidelines, Mr. Skipper’s hourly rate, at $300 per hour, is low. iii) Hours Spent [ 30 ] Affidavits were prepared and served, counsel attended on two occasions for cross-examination, and for two full day court appearances, with the attendant preparation for all of these. [ 31 ] Mr.

Govedaris claims 10 hours for preparing his motion to have the actions heard together and to stay enforcement of 307’s mortgage, and an additional 10 hours to prepare a supplementary motion record to GLC’s motion to require 162 to produce further documents before it delivered its defence.

GLC claimed 22.7 hours to review 162’s motion record and to prepare its responding factum and motion record to 162’s motion, and 23.9 hours to prepare its motion record and factum for its own motion to require further production of documents from 162, as appears from its Costs Outlines dated January 7, 2013. [ 32 ] GLC and 307 submit that the 73 hours that Mr. Govedaris spent on these motions overall is excessive. However, they have not submitted a Costs Outline for the entire time they spent. Their lawyers spent a greater amount of time in drafting materials than Mr. Govedaris did.

They have not disclosed the amount of time they spent attending for cross-examinations and in court attendances. However, they likely spent a greater amount of time than Mr. Govedaris on the cross-examinations, since it was they who were cross- examining the affiant of 162’s affidavits. [ 33 ] This Court has held, on more than one occasion, that when one party attacks another’s costs as excessive, but declines to put its own dockets before the court, the attack “is no more than an attack in the air.” [10] In Risorto v.

State Farm Mutual Automobile Insurance Co. , (2003), Winkler J., then a motion judge, stated: The attack on the quantum of costs, insofar as the allegations of excess are concerned, in the present circumstances is no more than an attack in the air. I note that State Farm has not put the dockets of its counsel before the court in support of its submission.

Although such information is not required under Rule 57 in its present form, and the rule enumerates certain factors which would have to be considered in exercising the discretion with respect to the fixing of costs in any event, it might still provide some useful context for the process if the court had before it the bills of all counsel when allegations of excess and “unwarranted over-lawyering” are made . In that regard, the court is also entitled to consider “any other matter relevant to the question of costs”. (See Rule 57.01(1)(i).

In my view, the relative expenditures, at least in terms of time, by adversaries on opposite sides of a motion, while not conclusive as to the appropriate award of costs, is still, nonetheless, a relevant consideration where there is an allegation of excess in respect of a particular matter. [11] [Emphasis added] [ 34 ] The time that Mr. Govedaris claims is proportional to the importance of the issues to the parties.

The amount he claims, based on the time spent, is also within the range of costs that GLC, informed by the fees its own lawyers were charging it, should have expected to pay if it was unsuccessful in the motions. iv) Complexity [ 35 ] The motions were of moderate complexity, as procedural motions go. There were a number of legal issues, including

a) the test

to be applied in a motion for trial of actions together and the application of the test;

b) the priority of claims and procedural distinctions among foreclosure, construction lien, and action for damages; and

c) the relevance of the documents GLC was seeking to be produced. The multiplicity of corporations and their inter-relatedness also contributed to factual complexity. There were several affidavits filed in the motions, and GLC and 307 cross-examined the deponent of 162’s affidavits, which required two separate attendances. The parties prepared Motion Records and Supplementary Records, as well as Factums and Briefs of Authorities. The reasons for disposition of the motions comprise 34 pages.

v) Importance of the Matter [ 36 ] Motions for transfer can vary greatly in their importance to the litigants and to the public. In the present case, I noted in my earlier reasons that a case involving contamination of soil may affect the community and be of significant interest to them. [ 37 ] Transfer motions can also vary in their importance to the litigants, especially where the location may affect their ability to litigate the case economically. In Siemens Canada Limited et al v.

The Corporation of the City of Ottawa, (2008), Corbett J. states : There are many cases where a choice of venue may have a significant impact on the practical ability of a party to advance or defend a case. In those cases, the concerns are over access to justice may be of overwhelming importance to the choice of proper venue. [12] [ 38 ] In the present case, I noted that the choice of location would affect the cost to 162 and 307 of prosecuting or defending the actions.

While the material they filed did not quantify the impact of the location on them, GLC’s Costs Outline dated January 7, 2013, states: “Opposing the consolidation of 3 construction lien actions with a fraud action and a mortgage foreclosure action from the London Court is extremely important to GLC as it is the plaintiff in 2 of the construction lien actions and a defendant in the fraud action.” vi) Reasonable Expectation of Unsuccessful Parties [ 39 ] A costs award must be within the reasonable expectation of the unsuccessful parties in order to preserve access to justice.

Armstrong J.A. explained the rationale for this principle in Boucher : The failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice . The costs system is incorporated into the Rules of Civil Procedure , which exist to facilitate access to justice…. In deciding what is fair and reasonable, as suggested above, the expectation of the parties concerning the quantum of a costs award is a relevant factor . [13] [ 40 ] I adopt Campbell J.’s statement in Jhaj v.

York University (2002), in this regard: In my view, the awarding of costs, particularly on a motion, should reflect some basis of continuity between similar kinds of motions and not be determined only on the basis of the number of hours involved. [14] [ 41 ] In reviewing a claim for costs, I need not undertake a line by line analysis of the hours claimed, nor should I second guess the amount claimed unless it is clearly excessive or overreaching.

I must consider what is reasonable in the circumstances and, after taking into account all of the relevant factors, award costs in a global fashion: see the cases referenced in Fazio v. Cusumano . [15] I do not find that the costs claimed by 162 to be clearly excessive or overreaching. vii) Proportionality [ 42 ] I have considered the principle of proportionality as expressed in the interpretive provisions of Rule 1.04 (1.1): 1.04

(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

(1.1) In 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 . [16] [ 43 ] In the present case, 162 seeks costs of $31,099.89 and $5,018.25, for motions which the parties considered extremely important, in actions involving hundreds of thousands of dollars. The costs are not disproportionate to the amounts at stake in the action.

They are also proportionate, insofar as this can be determined from the costs submissions, to the amounts that the lawyers for GLC and 307 charged their own clients. viii) Improper or Unnecessary: The Scale of Costs [ 44 ] In the normal course, costs are awarded to a successful party on a partial indemnity scale; however, the court has the discretion to order costs payable on a substantial indemnity scale in exceptional cases. [17] 162 does not claim its costs on a substantial indemnity scale, so I do not propose to consider this factor at length. [ 45 ] 162 argues that GLC’s motions should not have been brought.

It notes, with regard to GLC’s motion for further production, that 162 promptly produced the documents that GLC requested and identified them at the cross-examination of Mr. Skipper. It submits that GLC did not need to cross-examine Mr. Judge on his affidavit, and notes that the transcript of the cross-examination was not used. I agree that GLC was not entitled to further identification of the documents it sought to be produced. I am not, however, able, on the basis only of the fact that the transcript of the cross-examination was not used, to conclude that the cross-examination was not necessary.

[ 46 ] 162 says that 307’s foreclosure action was an abuse of process and should have been brought as a counterclaim in the fraud action. I do not regard the action as an abuse of process, even though its ultimate merit, and the enforceability of any order it obtains, will depend on the outcome of 162’s fraud action.

It is for this reason that the foreclosure action was permitted to proceed but enforcement of any foreclosure order was stayed. [ 47 ] I must, at this point, “step back and examine the overall award with a view to determining whether it is ‘fair and reasonable’ for the kind of matter involved.” In determining what is fair and reasonable, I take into account the reasonable expectation of the parties concerning the amount of costs. [18] [ 48 ] I have reviewed costs awards in motions for the types of relief sought by the parties in these motions. The results were of little assistance.

A range of costs for individual motions for a single category of relief, among the several that were sought in the present motions, can be found. The costs for motions for transfer alone, for example , other than for transfers to the Small Claims Court, which by their nature involve lesser amounts a t stake, range from $3,000 [19] to $6, 5 00 . [20] When another form of relief is sought, the costs are greater , as in Diagnostic Imaging International Corp et al. v.

Quinte Magnetic Resonance Imaging, Inc. et al , (2010), where Newbould J. awarded $22,000 for a motion for transfer and for payment of funds into court . [21] [ 49 ] Costs for consolidation of actions, or trials of actions together, are often greater, especially in commercial disputes, where the actions are more complex and the stakes are higher. For example, Atlas Copco Canada Inc. v.

Hillier , (2009), on the commercial list in Toronto, involved a motion based on forum non conveniens in a case that was not particularly complex in which the unsuccessful party had failed to concede the issue of jurisdiction simpliciter . Hoy J. granted costs in the amount of $35,000, not including the costs of cross- examination on affidavits, which he reserved to the trial judge. [22] I n 1 632842 Ontario Limited v.

Great Canadian Gaming Corporation , (2009), Morawetz J. awarded partial indemnity costs of $90,000, inclusive of disbursements and GST, in a motion for consolidation of several commercial actions . [23] [ 50 ] In the present motions, I find that the best evidence as to what GLC and 307 would reasonably have expected can be found in the Costs Outlines that GLC’s lawyers prepared and gave to 162’s lawyer in January 2013.

GLC’s lawyers’ costs of preparing their responding material for 162’s motion for trial of the actions together, and of preparing their own material for their motion to inspect and for further production, amounted to $14,373.

GLC has not disclosed the costs that it incurred later. 162’s additional costs consisted of the following: Preparation for and attendance at the cross-examination in Toronto on January 18, 2013: $1,750 (5 hours) Aborted cross-examinations in Toronto including preparation and attendance $700 (2 hours) Preparation for and attendance at the Cross-examination in Toronto on January 23, 2013: $1,750 (5 hours) Attendance at Court in Guelph on January 8, 2013, (9 hours incl. travel from Toronto, plus 4 hours preparation): $4,550 (13 hours) Attendance at Court in Guelph on Feb. 12, 2013, (11 hours incl. travel from Toronto, plus 4 hours preparation): $5,250 (15 hours) Correspondence: $700 (2 hours) Costs submissions: $1,400 (4 hours) Total: $16,100

[ 51 ] In the absence of evidence as to the entire time or amounts that the lawyers for GLC or 307 charged their clients, I find that above amounts are reasonable, with the exception of travel time for the two court attendances, which should be allowed at one half of Mr. Govedaris’ partial indemnity hourly rate. [24] Mr. Govedaris’ office , which is in Toronto , is 93.2 kms from Gueph , a drive of approximately 1 1/2 hours each way.

I will therefore deduct 3 h ours at $175 per hour, for a total of $525. [ 52 ] In all of the circumstances, GLC and 307 will pay 162 its costs on a partial indemnity scale in the amount claimed , less $525 of fees, with the appropriate adjustment of HST . The liability of GLC and 307 for the costs will be joint and several for the following reasons. Both parties opposed 162’s motion for trial of the actions together and to transfer and stay enforcement of 307’s action, which occupied most of the time at the hearing. GLC brought the motion to inspect documents already produced, which occupied less time.

As GLC and 307 were represented by the same lawyers at the hearing, and the costs of the motions cannot readily be segregated, and as GLC and 307 both opposed the motion requiring the greatest time to argue, it is appropriate that their liability for costs be joint and several. Costs of the Attendance on April 16, 2013 [ 53 ] 162 argues that the attendance on April 16, 2013, was unnecessary. I agree. The present motions were heard January 8, 2013.

On March 14, 2013, while judgment was reserved on the motions, 307 delivered two motions, one to strike 162’s pleadings and the other, for particulars, returnable April 16, 2013. On April 4, 2013, Mr. Govedaris wrote to 307’s and GLC’s lawyers, noting that he had not been consulted before the motion was delivered, enclosing his responding motion record, and advising them that he would be seeking an adjournment of the motions on April 16 th . On April 10 th , he wrote again, suggesting that all motions and contemplated motions be brought on the same day on the long motions list. On April 11, Mr.

Davis served a confirmation that all motions would be proceeding on April 16, for hearing on all the issues. [ 54 ] Mr. Davis states that three days prior to the attendance on April 16 th , GLC and 307 changed counsel to Davis Moldaver LLP. He states that counsel was not aware, when confirming the motions for April 16, 2013, that I had told the parties that it would be more appropriate that such motions be brought on the long motions list.

He adds that GLC and 307 consented to an adjournment of the motions as soon as their counsel became aware that the motions could not proceed on April 16 th and that their counsel tried unsuccessfully to contact 162’s lawyer by telephone on April 15, 2013. On this basis, he characterizes the costs sought by 162 as the costs of a consent adjournment. [ 55 ] I am unable to accept GLC’s and 307’s characterization of 162’s costs.

These costs resulted from the fact that GLC and 307 brought motions to strike 162’s pleadings and for particulars at a time when judgment on the present motions, the outcome of which could have affected the disposition of their motions, was pending. They were also incurred because they did not consult Mr. Govedaris before scheduling the motion for hearing on April 16 th , and on a regular motion date, and because their counsel failed to respond to Mr.

Govedaris’ letters of April 4, 9, and 10, requesting an adjournment. [ 56 ] GLC’s motions to strike 162’s pleadings and for particulars were not before me when the present motions were argued. I am therefore allowing only the costs 162 incurred in relation to the adjournment of the motions on April 16, 2013.

The remainder of the costs will be addressed when the motions are determined or withdrawn. [ 57 ] While 162 claims 5 hours for preparing a Responding Motion Record solely for the purpose of speaking to the adjournment, I am deferring those costs to when the motions to strike pleadings and for particulars are heard. It can best be determined at that time to what extent the costs of the motion record were solely attributable to the adjournment. [ 58 ] I am reducing the balance of costs claimed for the adjournment by $350, being half of Mr.

Govedaris’ hourly rate for the two hours of travel time between Toronto and Guelph. The costs of the adjournment will therefore be allowed as follows: Correspondence: $ 700.00 Court attendance (3 hours): $1,050.00 Travel (2 hours @ $175): $ 350.00 Costs Submissions: $ 700.00 Disbursements: $ 118.25 Total: $ 2918.25 + H.S.T.

Deferring the Payment of Costs [ 59 ] The question of whether the costs of these motions, and of the April 16, 2013, attendance, should be dealt with now or be left to the trial judge depends on whether the outcome of the motions, and of the April 16 th attendance, should have been a foregone conclusion or whether they were a “close call” and evidence to be heard at the trial may shed light on their reasonableness. In the latter case, it would be best to leave the determination of the costs to the trial judge.

In the present case, for the reasons stated above, the outcome of the motions, and of the April 16 th attendance, should have been a foregone conclusion. The evidence heard at trial will not place the judge in a better position to determine whether the parties’ conduct in relation to these motions, or the April 16 th attendance, was reasonable, or the appropriate amount of costs. For these reasons, the costs of the attendance should not be deferred. Order [ 60 ] Having regard to the foregoing, it is ordered that:

1. Great Lakes Copper Inc. and 3072453 Nova Scotia Company shall pay 1623242 Ontario Inc. its costs of the motions, fixed at $30,250.28, consisting of 25,025.00 for costs, $1,972.03 for disbursement, and $3,253.25 for H.S.T. (13% on $25,025), payable forthwith. 2.

Great Lakes Copper Inc. shall pay 1623242 Ontario Inc. its costs of the attendance on April 16, 2013, fixed at $ 2918.25 + H.S.T. forthwith, without prejudice to 1623242’s right to claim its costs of $1,750.00 for the preparation of the Responding Motion Record upon the determination of GLC’s motion to strike 1623242 Ontario Inc.’s pleadings. ___________________________ Price J. Released: December 23, 2013 CITATION : 1623242 Ontario Inc. v. Great Lakes Copper Inc . 2013 ONSC 7935 COURT FILE NO.: 571/12 DATE: 2013-12-23

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: 1623242 ONTARIO INC. Plaintiff and – GREAT LAKES COPPER INC. and 3072453 NOVASCOTIA COMPANY Defendants COSTS ENDORSEMENT Price J. Released: December 23, 2013 [1] 1623242 Ontario Inc. v. Great Lakes Copper Inc., 2013 ONSC 2548 .