



COURT OF APPEAL FOR ONTARIO

CITATION: Quickie Convenience Stores Corp.
    v. Parkland Fuel Corporation, 2021 ONCA 287

DATE: 20210503

DOCKET: C67832

Fairburn A.C.J.O., Feldman and
    Nordheimer JJ.A.

BETWEEN

Quickie
    Convenience Stores Corp.

Applicant (Appellant)

and

Parkland
    Fuel Corporation

Respondent (Respondent)

William C. McDowell, Brian Kolenda
and
Vinayak Mishra, for the appellant

Linda M. Plumpton and Jonathan Silver,
    for the respondent

Heard: in writing

On appeal from the judgment of Justice Paul
    B. Kane of the Superior Court of Justice dated November 14, 2019, with reasons
    reported at 2019 ONSC 6520.

COSTS ENDORSEMENT

[1]

On July 10, 2020, we released our decision in
    which we allowed the appeal, set aside the order below and, in its place,
    granted an order providing the appellant with the declaratory relief that it
    sought in its Notice of Application. We awarded the appellant the costs of the
    appeal fixed in the agreed amount of $3
5,000
inclusive of disbursements and HST. We then invited the parties to
    make written submissions on the costs of the original application. While the
    parties filed their costs submissions in accordance with the schedule set by
    the court, due to an administrative error, those submissions were only very
    recently provided to the panel. We have now reviewed those submissions.

[2]

The appellant asks for its costs of the appeal
    on a substantial indemnity basis in the amount of $230,313.09 on the basis of
    the conduct of the respondent that led up to this proceeding. In the
    alternative, the appellant seeks costs in the amount of $174,978.68, representing
    60% of its actual costs.

[3]

The respondent does not dispute that the
    appellant is entitled to its costs of the application but submits that there is
    no basis for an award of substantial indemnity costs. The respondent also
    submits that the amount of costs sought is excessive. It says that a reasonable
    amount would be no more than $85,000.

[4]

Contrary to the appellants submissions, we do
    not consider the conduct of the respondent to be such as to warrant an award of
    costs on the elevated substantial indemnity scale. As has been observed in many
    cases, costs on the elevated scale are exceptional and are reserved for those
    situations when a party has displayed reprehensible, scandalous or outrageous
    conduct: see, most recently,
Montréal (Ville) v. Octane Stratégie inc.
,
2019 SCC 57, 440 D.L.R. (4th) 1, at para. 95. The conduct of the respondent in
    this case does not rise to that level, even with the finding of bad faith
    dealing. An award of partial indemnity costs is appropriate.

[5]

In our view, an award of costs in the amount of
    $100,000 inclusive of disbursements and HST is a fair and reasonable amount to
    fix for the costs of the original application. In fixing that amount, we have
    taken into account a number of factors including the fact that the application
    judge awarded the respondent costs of $52,900 on the original application, that
    the appellant would have had a heavier burden as the applicant, and that
    neither party was successful on all of the issues raised.

[6]

The respondent is ordered to pay that amount to
    the appellant.

Fairburn
    A.C.J.O.

K.
    Feldman J.A.

I.V.B.
    Nordheimer J.A.


