



COURT OF APPEAL FOR ONTARIO

CITATION: National Steel Car Limited v. Independent
    Electricity System Operator, 2020 ONCA 37

DATE: 20200121

DOCKET: C65677 & C65678

Lauwers, van
    Rensburg and Trotter JJ.A.

BETWEEN

DOCKET: C65677

National
    Steel Car Limited

Applicant/Responding Party

(Appellant)

and

Independent
    Electricity System Operator, Ministry of Attorney

General
    (Ontario), Minister of Energy (Ontario)

Respondents/Moving Parties

(Respondents)

AND BETWEEN

DOCKET: C65678

National
    Steel Car Limited

Applicant/Responding Party

(Appellant)

and

Independent
    Electricity System Operator, the Attorney General

of
    Ontario, and Her Majesty the Queen in Right of Ontario

Respondents/Moving Parties

(Respondents)

Earl A. Cherniak, Q.C., Jerome R. Morse and David
    Trafford, for the appellant

Alan H. Mark and Melanie Ouanounou, for the respondent
    Independent Electricity System Operator

Robin K. Basu and Padraic Ryan, for the respondents
    Ministry of the Attorney General (Ontario) and Her Majesty the Queen in Right
    of Ontario

Heard: April 24, 2019

On appeal from the
    orders of Justice Wendy M. Matheson of the Superior Court of Justice, dated
    June 20, 2018, with reasons reported at 2018 ONSC 3845.

COSTS ENDORSEMENT

[1]

National Steel Car Limited was successful on the appeal. The court permitted
    the parties to make submissions on the costs of the appeal and the costs of the
    motion. The parties made submissions and National Steel Car replied.

[2]

The parties agreed before the argument that the costs for the appeal
    would be set at $75,000, all-inclusive. Accordingly, we fix costs for the
    appeal at $75,000, payable jointly and severally by the respondents to the
    appellant. This leaves for determination the costs of the motions for summary
    judgment.

[3]

The motion judge dealt with the costs in an endorsement reported at 2018
    ONSC 5165. She noted that Ontario sought costs in the amount of $50,000,
    all-inclusive for partial indemnity costs on the motions. IESO sought costs of
    about $120,000, for both the motions and the applications. She added, at para.
    4:

Both of these amounts compare
    favourably to the costs of the applicant in relation to the motions, from which
    I conclude that the overall quantum is within the applicants reasonable expectations.
    The applicants costs were approximately $210,000 all-inclusive, on a partial
    indemnity basis.

The motion judge awarded $50,000 to Ontario, and
    $75,000 all-inclusive to IESO.

[4]

National Steel Car renews its request for costs on a partial indemnity
    basis on the motions in the amount of $212,506.35, made up of $182,251.50 in
    partial indemnity fees, HST of $23,692.70 and disbursements in the amount of
    $6,562.15.

[5]

National Steel Cars submissions observe that its lawyers docketed a
    total of 563.3 hours while the lawyers for Ontario and IESO docketed 647.3
    hours, 84 hours more. Accordingly, they assert that the time spent by each side
    was proportional. They note as well that the hourly rates of the lawyers for
    National Steel Car are comparable with those for counsel for IESO. They assert
    that Ontario must be considered differently for costs purposes because its
    lawyers are salaried and do not charge hourly rates.

[6]

In its submissions National Steel Car notes:

Despite the discrepancy in partial
    indemnity rates claimed, the MAGs docketed hours at its reduced partial
    indemnity rates equal $76,250 (not including HST), while the IESOs docketed
    hours with its reduced partial indemnity rates equal $105,501.11 (not including
    HST). Combined the partial indemnity fees sought by the MAG and the IESO equal
    $181,501.11 compared to NSCs claim for partial indemnity fees (not including
    HST) of $182,251.50, a meager difference of $500.39.

National Steel Car asserts that the amount it claims is
    within the reasonable expectation of the respondents and is proportional to the
    issues in the case.

[7]

Ontario submits that the award of costs for the motions should be no
    greater than $75,000, which is the amount awarded to the IESO by the motion judge.
    Ontario argues that the amount awarded by the motion judge in total was
    $125,000, which is less than 60 percent of the costs claimed by National Steel
    Car on the motions. Ontario notes that there is some overlap between the work done
    by its counsel and the work done by IESO, even though counsel made an effort to
    minimize duplication of written and oral argument; however, the overlap is the
    fault of National Steel Car because it joined both Ontario and IESO as
    respondents. Ontario submits that it would be unreasonable to equate the time spent
    by National Steel Cars counsel with the time spent by counsel for Ontario and
    IESO. Ontario adds that much of the work done by National Steel Car will be of
    benefit in the continuing applications.

[8]

IESO asserts that the amount of the costs claimed is not within its
    reasonable contemplation. It takes the position that National Steel Cars costs
    should be capped at $125,000, in line with its own claim on the motion and with
    the motion judges thinking.

[9]

We agree that while the hours spent by each side and their financial
    costs roughly equate, there is overlap that tended to increase the responding
    sides costs and the overlap was in part caused by the way in which National
    Steel Car framed the applications. But, since Ontario and IESO were able to
    divide their labours, the overlap was not considerable. Nor should National
    Steel Car be adversely limited by the fact that Ontarios costs demands are
    relatively low.

[10]

We agree with National Steel Cars reply that if there is work already
    done and paid for by this costs award, it will be open to the parties to make
    that submission following the disposition of the applications.

[11]

Taking the factors together, we fix the amount to be paid by the respondents
    to National Steel Car in the amount of $175,000, inclusive of HST and
    disbursements.

P. Lauwers J.A.

K. van Rensburg J.A.

Gary Trotter J.A.


