J. David Ross

Following a successful Rule 21 motion dismissing the plaintiffs’ action for lack of jurisdiction, the defendant sought costs.

The court received written submissions only from the defendant after the plaintiffs failed to respond within the time allowed.

The court reviewed the bill of costs and found the time spent and hourly rates to be reasonable given the motion work, including cross-examinations, pleadings, and preparation.

Applying the Rule 57 factors, the court awarded partial indemnity costs fixed at approximately 55% of a reasonable full indemnity bill.

The defendant brought a Rule 21 motion to dismiss an Ontario action alleging breach of contract and misrepresentation on the basis that the governing contract between the corporate parties contained arbitration and exclusive jurisdiction clauses requiring disputes to be resolved in New Jersey.

The plaintiffs argued the claim against the defendant was personal and therefore outside the contractual forum selection clause.

The court held that the pleadings, read as a whole, demonstrated the dispute arose from the corporate relationship governed by the fabricator agreement, despite the plaintiffs discontinuing the action against the corporate defendants.

No strong cause was shown to avoid enforcement of the contractual arbitration and jurisdiction provisions.

The action could not proceed in Ontario and was dismissed.