Charles Cooke

The Plaintiffs, Zenish Polyfilm LLP and Zenish Reclamation, moved for summary judgment against Alpha Marathon Film Extrusion Technologies Inc. for damages of US$693,750.00 due to breach of contract.

The court found that Alpha Marathon fundamentally breached the March 2018 contract by failing to deliver the agreed-upon system within a reasonable time and by failing to refund an excess payment.

The court rejected Alpha Marathon's arguments regarding credibility issues and contractual interpretation, finding that the documentary evidence was sufficient for adjudication.

The motion for summary judgment was granted, and Alpha Marathon was ordered to pay the full amount plus prejudgment interest.

Following the dismissal of the plaintiff's motion for leave to issue a certificate of pending litigation, the successful defendants sought full indemnity costs of $17,800.89.

The court considered the defendants' offer to settle and the principles under Rule 49.10(2), noting that the presumptive rule for elevated costs does not strictly apply when a plaintiff's claim is entirely dismissed.

Balancing the complexity of the motion, the amount at stake, and the reasonable expectations of the parties, the court fixed costs at $11,563.29 inclusive of disbursements and HST.