Markplan Inc. v. Magazine Acquisition Corp., 2014 ONSC 3405

CITATION: Markplan Inc. v. Magazine Acquisition Corp., 2014 ONSC 3405

DIVISIONAL COURT FILE NO.: 239/14

DATE: 20140604

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

MARKPLAN INC.

Applicant

(Responding to motion for leave)

– and –

MAGAZINE ACQUISITION CORP. and SAM OSMAN

Respondents

(Moving Parties)

Counsel:

Stewart Douglas Thom, for the Applicant (Responding to motion for leave)

William John Genereux, for the Respondents (Moving Parties)

HEARD at Toronto: June 4, 2014

Before: harvison young j. (ORALLY)

1The moving parties/respondents Magazine Acquisition Corp. and Sam Osman (“respondents”) seek leave to appeal a costs order that was made by D. M. Brown J. The motion judge ordered $35,387.53 following a discovery motion that had been brought by the applicant Markplan Inc. (“the applicant”). He found that the respondents’ conduct in ignoring their disclosure obligations constituted reprehensible conduct justifying an elevated costs award on a substantial indemnity basis.

2The respondents agree with the law as set out by the respondents in their factum at paragraphs 41 and following of their factum. They take issue however, with the motion judge’s characterization of their conduct as reprehensible, within the meaning of that term as described in Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.). While the respondents strongly disagree with the motion judge’s characterization of their conduct had been reprehensible, I see no basis for finding that they had met the high threshold. The arguments made before me with respect to the context of the litigation and the explanations for their conduct were made before the motion judge and were clearly considered by him.

3In my view, this is not one of those rare cases where the high threshold for intervention in a costs award has been met. The record justifies D. M. Brown J.’s factual findings which grounded his costs award and which meets the test set out in Davies. He properly exercised his discretion in a detailed and well-reasoned decision which is to be accorded a very high level of deference.

4The respondents/moving parties thus had failed to reach the very high threshold required to warrant leave to appeal from a costs order.

5The motion is therefore dismissed.

COSTS

6I will endorse the Motion Record that costs are payable by the moving party in the amount of $4,500.

HARVISON YOUNG J.

Date of Reasons for Judgment: June 4, 2014

Date of Release: June 9, 2014