



COURT OF APPEAL FOR ONTARIO

CITATION: Midwest Properties Ltd. v. Thordarson, 2016 ONCA
    230

DATE: 20160329

DOCKET: C56758

Feldman, Hourigan and Benotto JJ.A.

BETWEEN

Midwest Properties Ltd.

Plaintiff (Appellant)

and

John Thordarson and Thorco Contracting Limited

Defendants (Respondents)

Evert Van Woudenberg, for the appellant

Frank Zechner and Christopher Du Vernet, for the
    respondents

Sandra Nishikawa and Isabelle
    OConnor, for the intervener Minister of the Environment and Climate Change

Heard: June 1, 2015

On appeal from the judgment of Justice Andra Pollak of
    the Superior Court of Justice, dated February 28, 2013, with reasons reported
    at 2013 ONSC 775, 73 C.E.L.R. (3d) 303.

COSTS ENDORSEMENT

[1]

In a decision of this court, dated November 27, 2015,
    the appellant was awarded, among other things, its costs of the trial:
Midwest
    Properties Ltd. v. Thordarson
, 2015 ONCA 819, 128 O.R. (3d) 81.  The
    parties were invited to file brief written submissions if they could not agree
    on the quantum of trial costs.

[2]

The parties agree on most of the trial costs claimed by
    the appellant.  They agree that the appellant is entitled to partial indemnity
    costs of $130,728.66, inclusive of $105,603.00 in fees, $11,397.27 in
    disbursements, and $13,728.39 in HST. In addition, the parties agree that the
    appellant is entitled to recover disbursements of $106,636.20 for 14 expert
    reports prepared by the appellants environmental experts, Pinchin
    Environmental (Pinchin). This amount also includes the fees charged by
    Pinchin to prepare for and to testify at trial.

[3]

There is one area of disagreement. The appellant seeks
    reimbursement in the amount of $32,025.00 for Phase I and Phase II
    environmental assessment reports prepared by Pinchin. These reports were
    commissioned by the appellant in furtherance of a possible acquisition of the
    respondent Thorco Contracting Limiteds (Thorco) property.

[4]

The appellant submits that although the reports were
    prepared for the purpose of investigating the purchase of Thorcos property,
    they were filed at trial and Pinchins witnesses gave evidence with respect to
    both reports. Therefore, the appellant argues that it is entitled to
    reimbursement for this disbursement.

[5]

We disagree. The reports were not commissioned to
    assist in or in contemplation of litigation. They are therefore not recoverable
    as a disbursement in this litigation. The fact that they were referenced at
    trial does not alter their nature as non-litigation work product.
Moreover,
    although the reports were used at trial, it is not clear that had they not been
    available, it would have been necessary to obtain them for the trial.

[6]

The appellants trial costs are fixed, as agreed among
    the parties, in the total
amount of $237,364.86, inclusive of all fees,
    disbursements, and applicable taxes.



K.
    Feldman J.A.

C.W.
    Hourigan J.A.

M.L.
    Benotto J.A.


