On appeal from the judgment of Juriansz J. dated November 26, 1998.
Counsel:
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Jeffrey Simpson and Mark Mulima, for the appellant. J. Alan Aucoin and Kathryn Podrebarac, for the respondent. |
The judgment of the Court was delivered by
MACPHERSON J.A.:—
Introduction
¶ 1 This is an appeal from the judgment of Juriansz J. dated November 26, 1998 in which he set aside service in Italy of a statement of claim by an Ontario company and stayed the company's action in Ontario on forum non conveniens grounds. In addition to the standard forum non conveniens factors that need to be addressed, the appeal poses the interesting question of where a contract is formed when the acceptance of an offer is communicated by facsimile transmission. Is the contract formed, in accordance with the general rule of contract law, in the place where the acceptance is received? Or should the postal exception to the general rule, which says that a contract is formed when and where an acceptance is placed in the mail, apply to acceptances communicated by facsimile transmission?
Factual Background
¶ 2 The appellant, Eastern Power Limited ("EP"), is a corporation organized under the laws of Ontario with its principal place of business in Toronto. Its business is the generation of power from non-conventional sources of energy such as landfill gas.
¶ 3 Azienda Communale Energia and Ambiente ("ACEA") is a corporation under the laws of Italy with its principal place of business in Rome. ACEA provides power to the City of Rome. ACEA generates some of its own power; however, it also purchases power from other sources.
¶ 4 In September 1994 representatives of ACEA came to Toronto to learn about EP's operations and to explore the possibility of developing power from non-conventional sources in Rome. In order to facilitate these discussions, a confidentiality agreement was prepared and signed. ACEA agreed to maintain as confidential any information specific to the proposed joint venture or related to proprietary processes and systems developed by EP. ACEA also agreed that it would not utilize such information and proceed independently or apart from EP.
¶ 5 In December 1994 EP met with ACEA in Italy. The parties drafted a Co-Operation Agreement. ACEA signed the agreement on December 9 and faxed it to EP in Ontario. EP signed the agreement in Ontario and faxed it to ACEA in Rome on December 21. It was an express term of the agreement that the two companies would co-operate and use their best efforts to enter into a project agreement. This agreement, relating to the implementation of the alternative energy project, would be based on proposals to be developed by EP and submitted to ACEA for approval. The project was described as "an electricity generating plant fuelled by landfill gas, sewage sludge and fossil fuel(s) located near Rome, Italy."
¶ 6 On January 29, 1996 ACEA signed a Letter of Intent relating to the project. The Letter of Intent was faxed by ACEA to EP in Ontario. On February 14 EP accepted and signed the Letter of Intent in Ontario and faxed it back to ACEA in Rome. The Letter of Intent indicated that the parties wanted to proceed with the project and set out how EP would structure itself in order to be permitted to carry out its work in Italy. The Letter of Intent contained these two provisions:
The terms of reference between the parties of the new company are governed according to the Joint Venture Agreement which will be later signed by the parties. |
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The intended contents of the present letter are subject to conditions such as: |
| a) | The acquisition of a favourable written opinion from the Ministry of Industry regarding the award of CIP 6 subsidy to the plant to be built, and also in relation to the Italian Law N. 481 dated 14.11.95 and every subsequent change and integrations which could occur in the meanwhile; |
¶ 7 The parties worked to conclude a Joint Venture Agreement. Many drafts were prepared. However, none was ever signed. During these further negotiations EP was concerned that ACEA was not diligently pursuing the important CIP 6 subsidy. On January 24, 1997 the Ministry of Industry amended the subsidy program in a way that made it inapplicable to the proposed joint venture.
¶ 8 On February 14, 1997, ACEA wrote to EP and effectively terminated their relationship. The letter, signed by ACEA's General Manager, Mario Diaco, cited three reasons: an inability to agree on some terms of the Joint Venture Agreement, the apparent inapplicability of the government subsidy to the project, and the legal requirement that ACEA award large contracts, like the proposed Rome generating plant, by way of public tender.
¶ 9 On March 19, 1997 EP forwarded an invoice to ACEA for $478,547 for development and legal costs relating to the project. The time frame for this invoice was stated to be October 1994 - March 1997.
¶ 10 On September 11, 1997 ACEA filed a summons with the Rome Civil Court. The summons essentially seeks a declaration that ACEA has no liability whatsoever to EP. EP was served with a copy of this claim about a week later. There is nothing in the record to indicate whether the court in Rome has disposed of the matter.
¶ 11 On December 4, 1997 EP commenced its action against ACEA in Ontario. EP sought damages of $750,000 for development costs incurred and $160,000,000 for loss of profits as a result of the alleged negligence and breach of contract by ACEA with respect to the Co-operation Agreement.
¶ 12 On January 19, 1998 ACEA was served with the statement of claim. ACEA did not serve a statement of defence and on March 25 was noted in default. EP then brought a motion for default judgment. This motion was adjourned to permit ACEA to bring its motion to set aside service of EP's statement of claim and to stay the action.
¶ 13 Juriansz J. heard ACEA's motion on October 27, 1998. On November 26, 1998 he released his judgment. He set aside the service in Italy of EP's statement of claim and he stayed EP's action in Ontario on forum non conveniens grounds. By endorsement released on February 9, 1999, he awarded ACEA its costs of the motion fixed at $44,000.
¶ 14 EP appeals from both components of Juriansz J.'s order of November 26, 1998 and from his costs award of February 9, 1999.
Issues
¶ 15 The issues on this appeal are:
Was the motions judge correct to stay EP's action in Ontario on the basis of forum non conveniens? |
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Was the motions judge correct to set aside service in Italy of EP's statement of claim? |
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Was the motions judge correct to award ACEA costs of the motion fixed at $44,000? |
¶ 16 In the view I take of the appeal, the disposition of the first issue makes it unnecessary to consider the second issue. Accordingly, in these reasons I will address only the forum non conveniens and costs issues.
C. Analysis
Forum non conveniens
¶ 17 On a motion to stay a proceeding on the basis of forum non conveniens, the test is whether there is clearly a more appropriate jurisdiction in which the case should be tried than the domestic forum chosen by the plaintiff: see Amchem Products Inc. v. British Columbia (Workers' Compensation Board) [See Note 1 below], [1993] 1 S.C.R. 897 at 921 and 931; Frymer v. Brettschneider (1994), 19 O.R. (3d) 60 (C.A.); and Mutual Life Assurance Co. of Canada v. Peat Marwick, [1998] O.J. No. 5119 (C.A.).
Note 1: Amchem was a case dealing with what is called an anti-suit injunction, not a motion to stay an action on the basis of forum non conveniens. The difference between the two types of proceeding was set out clearly in Amchem by Sopinka J., at pp. 912-13:
The courts have developed two forms of remedy to control the choice of forum by the parties. The first and more conventional device is a stay of proceedings. This enables the court of the forum selected by the plaintiff (the domestic forum) to stay the action at the request of the defendant if persuaded that the case should be tried elsewhere. The second is the anti-suit injunction, a more aggressive remedy, which may be granted by the domestic court at the request of a defendant or defendants, actual or potential, in a foreign suit. In the usual situation the plaintiff in the domestic court moves to restrain the defendant or defendants from launching or continuing a proceeding in the courts of another jurisdiction. |
In spite of the factual difference between the two types of proceeding, there is substantial overlap in the law relating to them. In particular, central to both remedies is a careful consideration of a range of factors, including the place where the parties carry on business, the law of the transaction and the notion of juridical advantage. Moreover, it is clear that in Amchem the Supreme Court was trying to articulate jurisprudence for anti-suit injunctions that would be consistent with the case law for motions for stays on forum non conveniens grounds. Thus, when commencing his formulation of the test for the former ("the closest connection with the action and parties"), Sopinka J. stated, at p. 931:
I would modify this slightly to conform with the test relating to forum non conveniens. Under that test the court must determine whether there is another forum that is clearly more appropriate. |
It follows, in my view, that Amchem is an important authority, not only in anti-suit injunction cases, but also in cases, such as this appeal, where the context is a motion for a stay on forum non conveniens grounds.
¶ 18 In determining which forum, domestic or foreign, is the more appropriate forum, the courts will look at a wide range of factors. The general approach was enunciated by Arbour J.A. in Frymer v. Brettschneider, at p. 79:
The choice of the appropriate forum is designed to ensure that the action is tried in the jurisdiction that has the closest connection with the action and the parties. All factors pertaining to making this determination must be considered. |
¶ 19 What, then, are the relevant factors? Amchem mentions several of them - the connection of the parties to the competing jurisdictions, where the acts that are the foundation of the claim took place, and legitimate juridical advantage in the domestic forum. A useful catalogue of factors which various Ontario courts have considered is contained in SDI Simulation Group Inc. v. Chameleon Technologies Inc., (1994), 34 C.P.C. (3d) 346 (Ont. Gen. Div.), wherein Borins J. stated, at pp. 350-51:
The law with respect to forum non conveniens has been subject to a number of recent cases: Amchem Products Inc. v. British Columbia (Workers' Compensation Board), [1993] 1 S.C.R. 897; Upper Lakes Shipping Ltd. v. Foster Yeoman Ltd. (1993), 14 O.R. (3d) 548 (Gen. Div.), leave to appeal refused; Guarantee Co. of North America v. Gordon Capital Corp. (1994), 18 O.R. (3d) 9 (Gen. Div.), leave to appeal refused; Frymer v. Brettschneider (1994), 19 O.R. (3d) 60 (C.A.). In my view, on the basis of these authorities the test is not one of convenience, but one of "a more appropriate jurisdiction based on the relevant factors in which to litigate the plaintiff's claim". In the Gordon Capital case Ground J. identified the following as the factors to be considered in determining the appropriate forum and, in the case of two appropriate forums, which is the more appropriate: |
the location where the contract in dispute was signed, |
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the applicable law of the contract, |
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the location in which the majority of witnesses reside; |
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the location of key witnesses, |
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the location where the bulk of the evidence will come from, |
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the jurisdiction in which the factual matters arose, and |
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the residence or place of business of the parties. |
¶ 20 In his judgment, Juriansz J. focussed on this catalogue of factors from Gordon Capital and SDI Simulation Group. He added to this list one other factor, the loss of juridical advantage, because it was identified as an important factor by the Supreme Court of Canada in Amchem. The appellant does not quarrel with the relevance of any of these factors, and indeed has made submissions on all of them. Hence, I will review these factors.
(a) Location where the contract was signed
¶ 21 The contract which forms the basis of EP's action in contract and tort against ACEA is the Co-operation Agreement: see Statement of Claim, paragraphs 5, 26, 30 and 31. The motions judge found that the Co-operation Agreement was made in Italy because "acceptance was communicated to Italy." Since EP's acceptance was communicated by facsimile transmission, this raises the interesting question of the legal relationship between a faxed acceptance of an offer and the place where a contract is formed.
¶ 22 The general rule of contract law is that a contract is made in the location where the offeror receives notification of the offeree's acceptance: see Fridman, The Law of Contract in Canada, 3rd ed., (1994), at p. 65; and Re Viscount Supply Co., [1963] 1 O.R. 640 (S.C.). However, there is an exception to this general rule. It is the postal acceptance rule. As expressed by Ritchie J. in Imperial Life Assurance Co. of Canada v. Colmenares, [1967] S.C.R. 443 at 447:
It has long been recognized that when contracts are to be concluded by post the place of mailing the acceptance is to be treated as the place where the contract was made. |
See also: Fridman, The Law of Contract in Canada, supra, at pp. 67-68.
¶ 23 EP contends that the rule with respect to facsimile transmissions should follow the postal acceptance exception. With respect, I disagree. EP has cited no authority in support of its position. There is, however, case authority for the proposition that acceptance by facsimile transmission should follow the general rule, which would mean that a contract is formed when and where acceptance is received by the offeror.
¶ 24 In Brinkibon Ltd. v. Stahag Stahl G.m.b.H., [1983] 2 A.C. 34 (H.L.), a contract was concluded when the buyer in London transmitted its acceptance to the seller in Vienna. The mode of acceptance was a message sent by telex, a form of instantaneous communication like the telephone. The law lords were unanimous in concluding that the contract was formed in Vienna where the acceptance was received by the offeror. Lord Brandon of Oakbrook analyzed the issue in this fashion, at p. 48:
Mr. Thompson's second and alternative case, that the contract was concluded by the buyers transmitting to the sellers their telex of May 4, 1979, seems to me to be the correct analysis of the transaction. On this analysis, however, the buyers are up against the difficulty that it was decided by the Court of Appeal in Entores Ltd. v. Miles Far East Corporation [1955] 2 Q.B. 327 that, when an offer is accepted by telex, the contract thereby made is to be regarded as having been so made at the place where such telex was received (in this case Vienna) and not in the place from which such telex was sent (in this case London). |
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Mr. Thompson invited your Lordships to hold that the Entores case was wrongly decided and should therefore be overruled. In this connection he said that it was well-established law that, when acceptance of an offer was notified to an offeror by post or telegram, the concluding of the contract took place when and where the letter of acceptance was posted or the telegram of acceptance was despatched. He then argued that the same rule should apply to cases where the acceptance of an offer was communicated by telex, with the consequence that the contract so made should be regarded as having been made at the place from which the telex was sent and not the place where it was received. |
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My Lords, I am not persuaded that the Entores case [1955] 2 Q.B. 327, was wrongly decided and should therefore be overruled. On the contrary, I think that it was rightly decided and should be approved. The general principle of law applicable to the formation of a contract by offer and acceptance is that the acceptance of the offer by the offeree must be notified to the offeror before a contract can be regarded as concluded, Carlill v. Carbolic Smoke Ball Co. [1893] 1 Q.B. 256, 262, per Lindley L.J. The cases on acceptance by letter and telegram constitute an exception to the general principle of the law of contract stated above. The reason for the exception is commercial expediency: see, for example, Imperial Land Co. of Marseilles. In re (Harris' Case) (1872) L.R. 7 Ch. App. 587, 692 per Mellish L.J. That reason of commercial expediency applies to cases where there is bound to be a substantial interval between the time when the acceptance is sent and the time when it is received. In such cases the exception to the general rule is more convenient, and makes on the whole for greater fairness, than the general rule itself would do. In my opinion, however, that reason of commercial expediency does not have any application when the means of communication employed between the offeror and the offeree is instantaneous in nature, as is the case when either the telephone or telex is used. In such cases the general principle relating to the formation of contracts remains applicable, with the result that the contract is made where and when the telex of acceptance is received by the offeror. |
¶ 25 In my view, this analysis is equally applicable to facsimile transmissions, another form of instantaneous communication. Indeed, there is at least one Canadian authority that has reached this conclusion. In Joan Balcom Sales Inc. v. Poirier (1991), 49 C.P.C. (2d) 180 (N.S. Co. Ct.), an acceptance of a real estate listing offer was communicated by two vendors in Ottawa to a real estate company in Berwick, Nova Scotia. The mode of communication was a facsimile transmission. The vendors' position was that the contract was formed in Ottawa; they argued that the "mailbox doctrine" should be applied to communication by facsimile transmission.
¶ 26 Haliburton Co. Ct. J. did not accept the vendors' argument. He reviewed the English academic writing about the postal acceptance exception to the general rule of contract formation. He then concluded, at p. 187:
The writers then discuss the practical need of special rules to be applied to contracts entered into by post in the age when post was the primary method of commercial communication. The considerations which made it highly practical, if not imperative, in the interests of commerce, for the offeree to have knowledge in a timely fashion that he had a firm contract do not apply to facsimile transmissions. The communication is instantaneous. The offeree could easily have confirmed within minutes that they had a binding contract. |
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I, therefore, find that the contract was executed at Berwick. [Emphasis in original] |
¶ 27 I agree with this analysis, and with the analysis of the law lords in Brinkibon. I would hold that in contract law an acceptance by facsimile transmission should follow the general rule of contract formation, not the postal acceptance exception.
¶ 28 I do not say that this rule should be an absolute one; like Lord Wilberforce in his separate speech in Brinkibon, "I think it a sound rule, but not necessarily a universal rule" (p. 42). Lord Wilberforce discussed some of the factors that might suggest caution about applying the general rule to telex communications in all cases, including the many variants in such communications and whether the message was sent and received by the principals to the contemplated contract. However, he concluded, at p. 42:
The present case is ... the simple case of instantaneous communication between principals, and, in accordance with the general rule, involves that the contract (if any) was made when and where the acceptance was received. |
¶ 29 In my view, the present appeal is also "the simple case." The acceptance was faxed by the principals of EP in Ontario to the principals of ACEA in Italy. There is nothing to suggest that the communication between these principals was not instantaneous. Hence, applying the general rule, the contract was formed in Italy.
The applicable law of the contract
¶ 30 The Co-operation Agreement contained no provision specifying which system of law, Ontario or Italy, was to govern issues arising under it. In such a situation, a court must infer which jurisdiction should be the proper law of the contract. In reaching a conclusion on the proper law, the court will consider a number of direct and contextual factors. Many of these factors are contained in a passage in Professor Castel's book, Canadian Conflict of Laws, 4th ed., (1997), at pp. 596-98:
If there is no express choice of the proper law, the court will consider whether it can ascertain that there was an implied choice of law by the parties ... [I]f the parties agree that the courts of a particular unit shall have jurisdiction over the contract, there is a strong inference that the law of that legal unit is the proper law. Other factors from which the courts have been prepared to infer the intentions of the parties as to the proper law are the legal terminology in which the contract is drafted, the form of the documents involved in the transaction, the currency in which payment is to be made, the use of a particular language, a connection with a preceding transaction, the nature and location of the subject matter of the contract, the residence (but rarely the nationality) of the parties, the head office of a corporation party to the contract, or the fact that one of the parties is a government. |
¶ 31 In my view, the motions judge was alive to the full range of factors as he determined the proper law of the Co-operation Agreement between EP and ACEA. He made a full and careful analysis of the factors (Reasons, p. 10):
In my view, the applicable law of the cooperation agreement and letter of intent is Italian. While there is no express choice of governing law, the cooperation agreement provided that the Italian version would "bear witness", only the Italian version of the letter of intent was executed, currency was expressed in lira, the subject matter of the contracts was the building of a power plant near Rome, the project was subject to Italian regulation, the plaintiff was to participate in the project through a company organized under Italian law, and the defendant was associated with the municipal government of Rome. The plaintiff's intent and recognition that Italian law would govern is indicated by the fact it regarded as finalized the draft joint venture agreement which provided that Italian law would govern and the Italian courts would have exclusive jurisdiction. |
¶ 32 Some of these factors are direct - they involve an interpretation of the Co-operation Agreement. Other factors, including those relating to the Letter of Intent (which the parties signed) and the draft Joint Venture Agreement (which was never signed) are contextual. All, in my view, are relevant. They point overwhelmingly to the conclusion reached by the motions judge: the proper law of the contract was Italian law.
Location where the majority of witnesses reside
¶ 33 The motions judge did not address this factor. There is little in the record on EP's side to indicate how many witnesses it would call. In the affidavit of Gregory Vogt, a director of EP, dated September 2, 1998, there is this brief allusion in paragraph 30: "None of the witnesses who would be called to testify on behalf of EP speak Italian, with the exception of Mr. De Vuono." Unfortunately, all this establishes is the unsurprising fact that EP intends to call more than one witness at the trial.
¶ 34 The record on ACEA's side is better. In his supplementary affidavit dated October 21, 1998, Vincenzo Puca, the Head of the Legal Department at ACEA, stated:
[T]he persons that ACEA would call to testify in this proceeding reside in Italy, and the majority of them do not speak English. Besides the undersigned, the following ACEA employees would be probably called to testify as witnesses: none of them speaks English fluently, and the services of an interpreter would become necessary to receive their testimony: Francesco Sperandini, Alfonso Messina, Massimo Cortesi, Biagio Eramo and Maria Gemma Pisano. The testimony of some Italian public officials may also be necessary. |
¶ 35 Based on the record, it appears that the majority of witnesses reside in Italy. Having said that, in a case involving two large corporations and hundreds of millions of dollars it does not strike me that this factor is a particularly important one.
Location of key witnesses
¶ 36 Presumably, the key witnesses for EP would be Canadians and the key witnesses for ACEA would be Italian. This factor is neutral.
The location where the bulk of the evidence will come from
¶ 37 The motions judge concluded that the location where the bulk of the evidence will come from is Italy. He offered no reasons for this conclusion.
¶ 38 In my view, this is a difficult factor to assess on the record before the motions judge. There is no question that EP performed its part of the contract in both Ontario and Italy. ACEA's performance obviously was anchored in Italy; however, its representatives made at least one trip to Ontario. Without knowing the identity of the witnesses and something about the evidence to be tendered, it would be wrong to reach a conclusion on this factor.
The jurisdiction in which the factual matters arose
¶ 39 The motions judge did not consider this factor. EP argues that it performed some of the development work on the power plant in Toronto. This preliminary work would have been done, likely in Toronto, even if the Joint Venture Agreement had been finalized.
¶ 40 However, the design, construction and operation of the plant would have taken place almost entirely in Italy. The Letter of Intent required EP to acquire an Italian construction company to undertake the project. A new Italian company, owned 51 percent by ACEA and 49 percent by EP, was to acquire the construction firm. The final draft of the Joint Venture Agreement proposed that meetings of the board of directors of the new company were to take place in Rome. In addition, throughout the two and a half year relationship between EP and ACEA, almost all of the negotiating sessions for the project took place in Italy; it appears that only one meeting, in October 1994, took place in Ontario.
¶ 41 Moreover, a significant part of EP's claim relates to the alleged failure of ACEA to secure a major subsidy for the project from the Italian government. No part of this sequence of events took place in Ontario and none of the persons responsible for the subsidy program or ACEA's attempt to secure a subsidy has any connection with Ontario. EP had nothing to do with that portion of the project.
¶ 42 For these reasons, I conclude that this factor tells in favour of Italy as the proper forum for the litigation between the parties.
The residence or place of business of the parties
¶ 43 EP's place of business is Ontario; ACEA's is Italy. This is a neutral factor.
Loss of juridical advantage
¶ 44 A substantial portion of EP's claim against ACEA is for damages for alleged loss of profits. These damages flow, asserts EP, from ACEA's breach of contract and from its negligence. EP asserts that Italian law does not permit a claim for loss of profits. This is, EP concludes, a huge juridical disadvantage.
¶ 45 Accepting, arguendo, the truth of EP's assertion that Italian law does not permit a claim for loss of profits does not, in my view, assist EP. The proper law of the contract between the parties is, as discussed above, Italian law. If the action is heard in a court in Ontario the court will have to apply Italian law, including the Italian law with respect to damages flowing from breach of contract.
¶ 46 EP's tort claim suffers the same fate. In Tolofsen v. Jensen, [1994] 3 S.C.R. 1022, a case dealing with conflict of laws principles in a tort context, La Forest J. said, at pp. 1049-1050:
From the general principle that a state has exclusive jurisdiction within its own territories and that other states must under principles of comity respect the exercise of its jurisdiction within its own territory, it seems axiomatic to me that, at least as a general rule, the law to be applied in torts is the law of the place where the activity occurred, i.e., the lex loci delicti ... In short, the wrong is governed by that law. It is in that law that we must seek its defining character; it is that law, too, that defines its legal consequences. [Emphasis added] |
¶ 47 In paragraph 31 of its Statement of Claim, EP sets out the conduct which it alleges constituted negligence on the part of ACEA. All of the impugned conduct relates to ACEA's efforts, or lack thereof, in relation to the Italian government's subsidy program and ACEA's position with respect to the negotiation and finalization of the Joint Venture Agreement. ACEA's activities in both of these domains took place in Italy.
¶ 48 EP makes one other argument, a procedural one, on the juridical advantage point. It is that Italian law does not permit a jury trial, whereas a jury trial is possible if this action proceeds in Ontario. I must confess my surprise that EP would advance this argument; it did not file a jury notice when it served its Statement of Claim and it has not done so in the 20 months since then.
¶ 49 For these reasons, I would conclude, as did the motions judge, that EP will suffer no juridical loss, in contract law, tort law or procedure, if its dispute with ACEA is resolved by the Italian courts.
Conclusion
¶ 50 Of the eight factors I have considered, five tell in favour of ACEA. Four of the five strike me as particularly important factors - the location where the contract was formed, the law of the contract, the jurisdiction in which factual matters arose, and the absence of a loss of juridical advantage for EP. The other three factors are neutral. No factors favour EP's position. Accordingly, the motions judge was correct to stay EP's action in Ontario on forum non conveniens grounds.
¶ 51 In light of this conclusion, it is not necessary to consider the motions judge's second basis for staying EP's action in Ontario, namely that EP could not serve its statement of claim on ACEA ex juris in Italy because EP could not bring itself within rule 17.02(h) of the Rules of Civil Procedure which requires that the plaintiff's claim be "in respect of damage sustained in Ontario." If, as I have concluded, EP's action cannot be brought in Ontario, then it is irrelevant how EP effected service of its statement of claim.
Costs
¶ 52 In supplementary reasons dated February 9, 1999, the motions judge fixed costs of the motion payable by EP to ACEA at $44,000. EP does not object to the fact that the motions judge fixed costs; it appears that both parties agreed to this format. EP does object to the $44,000 amount of the award, which it characterizes in its factum as "grossly excessive".
¶ 53 A trial or motions judge has a large discretion as to costs: see Murano v. Bank of Montreal (1998), 41 O.R. (3d) 222 (C.A.). The motions judge in the case under appeal was familiar with the issues and he received extensive submissions on costs. In his supplementary reasons, he described the motion as "a moderately complex matter in an action in which some $163,000,000 was claimed" (p. 2). He also characterized the motion as "a matter of great importance to the parties and counsel for both sides, justifiably, devoted time to it" (p. 2).
¶ 54 Both parties submitted bills of cost and supporting affidavits and dockets to the motions judge. ACEA asked for a costs order of $50,014.50 inclusive of disbursements and GST.
¶ 55 In my view, there is nothing to indicate that the motions judge did not properly consider the submissions made by the parties or the factors in rule 57.01. Although his costs award was a substantial one, he did not simply rubber stamp ACEA's request. Accordingly, in my view there is no basis on which this court should interfere with the motions judge's discretion in ordering EP to pay costs of $44,000 inclusive of disbursements and costs.
Disposition
¶ 56 I would dismiss the appeal with costs.
MacPHERSON J.A.
ABELLA J.A — I agree.
LASKIN J.A. -- I agree.
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