COURT OF APPEAL FOR ONTARIO
CITATION: Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2023 ONCA 353
DATE: 20230516
DOCKET: C70663 & M53567
Zarnett, Thorburn and Copeland JJ.A.
BETWEEN
Baffinland Iron Mines LP and Baffinland Iron Mines Corporation
Applicants
(Appellants/Responding Parties)
and
Tower-EBC G.P./S.E.N.C.
Respondent
(Respondent/Moving Party)
Kent Thomson, Sean Campbell, Anisah Hassan, Maureen Littlejohn, Anthony Alexander and Trevor May, for the appellants
Ira Nishisato, Hugh Meighen, Erin Peters and Stéphanie Gagné, for the respondent
Heard: January 12, 2023
On appeal from the judgment of Justice Laurence A. Pattillo of the Superior Court of Justice, dated April 11, 2022, with reasons reported at 2022 ONSC 1900.
COSTS ENDORSEMENT
[1] By reasons dated April 13, 2023, we dismissed the respondent’s motion to quash, dismissed the appeal, and invited the parties to make submissions on the costs of both if they were unable to agree on their disposition: Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2023 ONCA 245. We have now received and reviewed those submissions.
[2] The respondent (“TEBC”), the successful party on the appeal, asks for costs of the appeal on a substantial indemnity scale in the sum of $232,969.88. Those costs do not include anything for the motion to quash, on which TEBC was unsuccessful.
[3] The appellants (“BIM”) argue that there is no basis for the scale or quantum of costs sought by TEBC. BIM concedes that TEBC is entitled to reasonable costs of the appeal after deduction of costs payable to BIM for its successful opposition to TEBC’s motion to quash. BIM submits that TEBC should be awarded the net amount of $30,000.
[4] We agree with BIM that there is no basis for TEBC’s request for substantial indemnity costs. We also agree with BIM that its costs associated with the motion to quash should be deducted from what otherwise would be payable to TEBC as costs for the appeal. And we agree that in fixing a reasonable amount of partial indemnity costs payable for an appeal, the court is not bound to make an award based on the precise amount of docketed time a party presents.
[5] We do not agree with BIM, however, that the appropriate resulting costs award to TEBC is $30,000.
[6] The amounts and issues involved in the appeal were significant. Each side used highly skilled teams of lawyers for the appeal and would reasonably expect this of their opponent. The point on which the appeal was decided was a focussed one − whether the arbitration agreement precluded appeals. But BIM also requested, if it succeeded on that point, that the court decide whether leave to appeal was warranted based on the detailed grounds it maintained justified that result. Although in deciding the appeal the court did not ultimately reach that issue, TEBC was required to respond to it.
[7] In our view, a reasonable amount of costs payable to TEBC for the appeal, net of costs payable by it for the motion to quash, is $90,000, all inclusive. That amount shall be paid by BIM to TEBC.
“B. Zarnett J.A.”
“Thorburn J.A.”
“J. Copeland J.A.”