Court File and Parties

COURT FILE NO: 74-07

DATE: 20070810

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: GARY HAYES Plaintiff/Appellant

- and –

PEER 1 NETWORK INC. Defendant/Respondent

BEFORE: The Honourable Mr. Justice Sidney N. Lederman

COUNSEL: Daniel A. Lublin, for the Appellant Ellen V. Swan, for the Respondent

ENDORSEMENT AS TO COSTS

[1] The plaintiff, Hayes, having been successful on the appeal seeks his costs on a partial indemnity basis fixed at $7150 inclusive of disbursements for the appeal, and $9,500 inclusive of disbursements and GST for the motion before the Master.

[2] The defendant, Peer 1 Network Inc., however, submits that there is an inter-relationship between the issues raised on the motion and appeal on one hand, and the issues to be raised at the trial on the other, in that the defendant is seeking in both circumstances to enforce the employment agreement which includes the non-exclusive attornment clause in question. It, therefore, submits that there should be no costs or, alternatively, costs should depend on the outcome of the trial.

[3] The plaintiff was successful on the appeal and there is no reason why costs should not follow the event in these circumstances. He is, therefore, entitled to his partial indemnity costs on both the appeal and the motion.

[4] Having regard to the factors set out in rule 57.01 and, in particular, the importance of the issue to the plaintiff, the fact that the legal and factual issues were not overly complex and also, having regard to the amount of costs that an unsuccessful party could reasonably expect to pay in relation to a motion and appeal of this nature, I fix the plaintiff’s costs for both the appeal and motion in total at $13,500 inclusive of disbursements and GST payable by the defendant within 30 days.

Lederman J.

Released: August 10, 2007