Bruce Stratton

This decision concerns a costs award following the dismissal of the plaintiff's Rule 45.02 motion.

The court fixed costs at $53,500, payable by the plaintiff to the defendants.

The defendants' request for increased costs, based on supplementary written submissions and a rejected Rule 49 offer to settle, was denied.

The court reasoned that the supplementary submissions related to a point (existence of a "specific fund") that was resolved in the plaintiff's favour, and that elevated costs for a dismissed motion require evidence of egregious or reprehensible conduct, which was not present.

The plaintiff, 3Genius Corporation, brought a motion under Rule 45.02 of the Rules of Civil Procedure for an order requiring Apple Inc. to pay holdback amounts from a transaction with the defendants, Locationary Inc. and Grant Ritchie, into court pending trial.

The plaintiff alleged misappropriation of software and sought damages, an accounting, and tracing.

The court applied a three-part test for Rule 45.02 motions: (i) claim to a specific fund, (ii) serious issue to be tried, and (iii) balance of convenience.

While the court found a reasonably identifiable fund, it determined that the plaintiff's claim was, in essence, a claim for damages, not a legal right to the specific fund, which is not permissible under Rule 45.02.

Furthermore, the balance of convenience did not favour the plaintiff, as there was no evidence of intent to flee or dissipate assets.

The motion was dismissed with costs.

A professional accounting body sought a statutory injunction under s. 30(1) of the Certified General Accountants Act, 2010 to prevent the respondents from using the designation “CGMA” (Chartered Global Management Accountant) in Ontario.

The applicant argued the designation contravened s. 26 of the Act by incorporating the protected initials “CGA” and implying the holder was a Certified General Accountant.

The court applied modern statutory interpretation principles and the rule that statutes creating professional monopolies must be strictly construed.

It held that the specific quoted designations protected by the statute did not extend to the acronym CGMA and that the designation did not imply a Certified General Accountant.

The court found the applicant failed to establish a contravention of the Act on a balance of probabilities.