



COURT OF APPEAL FOR ONTARIO

CITATION: 806480 Ontario Limited v. RNG Equipment Inc., 2014
    ONCA 796

DATE: 20141112

DOCKET: M44170 (C58077)

Laskin, Pepall and Pardu JJ.A.

BETWEEN

806480 Ontario Limited cob as Kens Sunoco
    Service

Plaintiff (Appellant)

and

RNG Equipment Inc. and
ZCL
    Composites Inc
.

Defendants (
Respondent
)

John H. McNair, for the appellant

John W. Makins, for the respondent

Heard: in writing

On a motion to vary the judgment of this court awarding
    costs to the appellant in the agreed sum of $8000.

ENDORSEMENT

[1]

The respondent moves to vary the judgment of this court awarding costs
    to the appellant in the agreed sum of $8000. The appellant was successful in
    overturning a decision of a motion judge refusing to set aside the
    administrative dismissal of his action. There are two arguments advanced on
    this motion. Firstly, the respondent says costs should not follow the event,
    because it was in no way at fault in the unfolding of the events. For the same
    reason, it submits that it should be awarded the costs originally granted to it
    as the successful party on the motion, in the sum of $7800. Secondly, the respondent
    asserts that it did not agree to costs fixed at $8000, and that it should have
    been given an opportunity to make submissions on costs.

[2]

The argument on appeal turned on the motion judges application of the
    criteria for setting aside an administrative dismissal: the length and reason
    for the delay, the presence or absence of a good faith intention to pursue the
    action, any prejudice suffered by the opposite party and the justice of the
    case. At the conclusion of the hearing, the court allowed the appeal, with reasons
    to follow, and invited submissions as to costs.

[3]

The digital recording of the appeal discloses the following submissions:

Appellant: We do not have an entire agreement. Here is the
    situation. My friend, I think, wishes to address submissions to you that the
    appellant should be denied its costs. If you are minded, as I urge, to award
    the appellant its costs of the appeal, we have agreed upon the appropriate
    quantum.

Court: Alright. And what about the motion costs?

Appellant: We are not seeking to recover the costs of the
    motion before Justice Goodman but it is my respectful submission that the
    appellant ought to recover its costs of this appeal.

Court: Whats the number that you have agreed on?

Appellant: $8,000 all inclusive.

Court: So Mr. Blays point is no costs in the circumstances?

Respondent: Thats our submission, Your Honour. Simply put, we
    wouldnt be here were this not for the delinquency of Mr. Cudmore in the first
    place

[4]

Following the hearing, the Court observed that while the status notice
    sent to the appellant on September 13, 2012 provided that the action would be
    dismissed unless it was set down or otherwise terminated within 90 days of
    service of the status notice, the Registrars order dismissing the action for
    delay was made on December 4, 2012, before the 90 days had expired.

[5]

The Court invited the parties to make further written submissions on
    this point, unnoticed by counsel on the motion, the motion judge, and counsel
    on the appeal. Ultimately the respondent agreed that the dismissal of the
    action should be set aside as of right.

[6]

The respondent submits that the appellant should have noticed the
    untimely dismissal by the Registrar. Had the appellant brought this to the
    attention of the motion judge, or the respondent, the respondent would have
    consented to setting aside the dismissal, and the appeal would have been
    unnecessary.

[7]

These circumstances do not justify a departure from the usual rule that
    costs should follow the event. Had the respondent noticed the untimely
    dismissal, it could have consented immediately to the relief sought.

[8]

Finally, as the digital recording makes clear, counsel for the respondent
    signified his agreement to the amount of costs, but took the position that
    there should be no costs awarded, despite the appellants success. We see no
    reason to vary the order of this court granting costs to the successful party
    on appeal in the amount agreed to. No costs of the motion below were awarded to
    either party, reflecting the responsibility each bore for the outcome.

[9]

While the moving party here requested an oral hearing of this motion,
    given the nature of the issue, the Court elected to deal with the motion in
    writing.

[10]

Counsel
    may make written submissions as to the costs of this motion, due from the
    moving party within 10 days, and from the respondent on the motion within 10
    days thereafter.

John
    Laskin J.A.

S.E.
    Pepall J.A.

G.
    Pardu J.A.


