





CITATION: Agribrands Purina Canada
      Inc. v. Kasamekas, 2011 ONCA 581





DATE: 20110907



DOCKET: C51618 and C51637



COURT OF APPEAL FOR ONTARIO



Goudge, Gillese and Juriansz JJ.A.



BETWEEN



Agribrands Purina Canada Inc.



Plaintiff (Appellant)



and



Walter Kasamekas and Sherry Kasamekas, Raymond Joseph
          Jackon and Savitri Jackson



Defendants (Respondents)



AND BETWEEN



Walter Kasamekas and Sherry Kasamekas, Raymond Joseph
          Jackson and Raywalt Feed Sales



Plaintiffs by Counterclaim (Respondents)



and



Agribrands Purina Canada Inc.
, Rens Feed and
          Supplies Limited, Walter Rendell Job, McGrath Farms Inc., Edward James
          McGrath Farms Ltd., E.J.M. Farms Ltd. and
The Estate of Edward James
          McGrath



Defendants by Counterclaim
(Appellants)




Kirk F. Stevens and Gerard V. Thompson, for the appellants



W. Graydon Sheppard and Marc Munro, for the respondents



Heard: February 14, 2011



On appeal from the judgment of Justice Michael G. Quigley of
          the Superior Court of Justice dated January 6, 2010, with reasons reported at
          [2010] O.J. No. 84.



COSTS ENDORSEMENT



[1]

On June 20, 2011, this court released its decision in this appeal.

[2]

We allowed the appeal of Agribrands Purina Canada Inc. (Purina) from
    the trial judges finding that it was liable to the respondents for the tort of
    civil conspiracy. We also allowed Purinas appeal from the trial judges
    damages award for breach of contract, finding that the method of calculation
    used was in error, and substituting the proper method. Finally, we allowed
    Purinas appeal from the trial judges award of pre-judgment interest. However,
    we dismissed Purinas appeal of certain calculations by the trial judge that
    remained relevant to the proper method of calculating contract damages. We also
    dismissed Purinas appeal of the punitive damages awarded against it.

[3]

We also allowed the appeals of the Estate of Edward James McGrath and
    Rens Feed and Supplies Limited and Walter Rendell Job (together Rens) of
    the civil conspiracy finding against them, with the result that the respondents
    action against them failed.

[4]

We sought and received written submissions from all parties about what
    costs orders should result from this decision, both costs in this court and at
    trial. Those submissions have now been received and reviewed. Our decision is
    as follows.

COSTS OF THE APPEAL

[5]

Purina submitted a bill of costs for the appeal
    of $35,246.16 on a partial indemnity basis. Rens partial indemnity bill was
    $33,424.36. They both say that since they succeeded, and since they achieved a
    very significant overall reduction in the damages awarded to the respondents,
    they should be awarded $20,000 and $30,000 respectively as costs of the appeal.
    In other words, they argued for only a small reduction.

[6]

We conclude that Purina should receive costs of
    the appeal on a partial indemnity basis fixed at $15,000, inclusive of
    disbursements and applicable taxes. The reduction from the amount sought by
    Purina reflects the divided success that Purina achieved. In this context it is
    particularly important that this court found no basis to interfere with the
    punitive damages award against Purina. In these circumstances, a significant
    reduction from the amount claimed is warranted.

[7]

We award costs of the appeal to Rens on a
    partial indemnity basis fixed at the same amount, namely $15,000 inclusive of
    disbursements and applicable taxes. While Rens was completely successful in
    escaping liability, it split the issues in appeal with Purina, and they
    effectively argued the appeal together. Their costs, like Purinas, must
    reflect the overall result. This reduction reflects the overall divided success
    they achieved. In addition, Rens was unsuccessful in its principal argument,
    namely the challenge to certain damage calculations made by the trial judge.
    Our award reflects these considerations.

[8]

In summary, the respondents are ordered to pay
    costs of the appeal to Purina and Rens, each in the amount of $15,000,
    inclusive of disbursements and applicable taxes.

COSTS OF THE TRIAL

[9]

At trial, the parties agreed that the respondents
    should receive trial costs of $175,000. Purina now argues that while it remains
    liable for breach of contract and therefore should pay some trial costs to the
    respondents, the amount should be reduced to $125,000 to reflect Purinas
    success in resisting the claim for civil conspiracy.

[10]

We disagree. Purina contested the respondents
    contract claim at trial and was found liable for this and for punitive damages.
    In these circumstances, the respondents failure to succeed on one cause of
    action is no reason to deprive them of the fair costs that the parties agreed
    should be paid to the successful party. We therefore decline to change the
    trial costs to be paid by Purina to the respondents.

[11]

Rens seeks trial costs on a partial indemnity
    basis of approximately $65,000. They attended the entire trial. However, it appears
    to be agreed that only about one third of the trial was devoted to the civil
    conspiracy issue, the issue on which Rens was at risk. Hence a considerable
    reduction in the trial costs sought by Rens is appropriate. We therefore order
    that Rens receive trial costs in the amount of $25,000 inclusive of
    disbursements and applicable taxes.

[12]

The respondents argue that a Sanderson order
    should be made that they recover these trial costs awarded against them from
    Purina. We agree. It was entirely reasonable for the respondents to join Rens
    and Purina in this action. The relationship between Rens and Purina was
    fundamental to both the civil conspiracy claim and the contract claim. It made
    every sense for the respondents to sue Rens as well as Purina. A Sanderson
    order is therefore appropriate.

[13]

In summary, it is ordered that the respondents
    recover trial costs of $175,000 from Purina and Rens recover trial costs of
    $25,000 from the respondents which they in turn recover from Purina, each
    inclusive of disbursements and applicable taxes.

DISPOSITION

[14]

Order to go accordingly.

S.T. Goudge J.A.

E.E. Gillese
    J.A.

R.G. Juriansz
    J.A.


