CITATION: Polmat Group Inc. v. E Ring Corp., 2015 ONSC 2018
COURT FILE NO.: DC-14-129001
DATE: 20150327
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
POLMAT GROUP INC.
Mr. H.W. Reininger, for the Plaintiff
Plaintiff
- and -
E RING CORP. INVESTMENTS LLC (IN TRUST), DAVE BENSON AKA DAVID BENSON, 2203746 ONTARIO INC. AND MACDONALD SAGER MANIS LLP
Mr. D. Rose, for the defendants E Ring Corp. Investments LLC (in trust), Dave Benson aka David Benson and 2203746 Ontario Inc.
No one appearing for the defendant, MacDonald Sager Manis LLP
Defendants
HEARD: February 10, 2015
ENDORSEMENT RE: COSTS
MACKENZIE J.
[1] By Endorsement dated February 24, 2015, I quashed the defendant Benson’s appeals from the Snowie and Price Orders, set aside the Certificate of Stay relating to such orders and directed the Sherriff of the Judicial District of Peel to enforce the Writ of Possession obtained by the plaintiff.
[2] I awarded costs to the plaintiff and directed the parties to make written submissions as to the amount of costs in default of agreement as to that amount. I have since received their respective written submissions.
[3] Counsel for the plaintiff/respondent in the appeal contends the costs of the motion should be fixed on a substantial indemnity basis in the amount of $8,813.88. The grounds on which counsel submits the award should be on a substantial indemnity basis is that the defendant/appellant Benson’s actions in the proceeding constitute abuse of the court’s process and are worthy of the court’s sanction in a costs award against him on a scale higher than partial indemnity. In the alternative counsel has submitted a partial indemnity based costs amount of $5,918.25.
[4] In support of his contention that a substantial indemnity costs award is appropriate, counsel refers to the case of Davies v. Clarington (Municipality), 2009 ONCA 722, [2009] O.J. No. 4236 (OCA). In particular, counsel refers to dicta therein where the Court of Appeal reviewed authorities dealing with the issue of awarding costs on a scale above that of substantial indemnity or full indemnity (“elevated costs”).
[5] In Young v. Young, [1993] 4 S.C.R. 3 (SCC) McLachlin J. (as she then was) described the circumstances when elevated costs were warranted as “only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties: p. 134.
[6] In Mortimer v. Cameron, (1994), 17 O.R. (3d) 1, the Court of Appeal described the restricted circumstances in which the higher (than partial indemnity) costs scale was warranted, in the following language:
An award of costs on the solicitor-and-client scale, it has been said, is ordered only in rare and exceptional cases to mark the court’s disapproval of the conduct of a party in the litigation. The principle guiding the decision to award solicitor-and-client costs has been enunciated thus:
[S]olicitor-and-client costs should not be awarded unless there is some form of reprehensible conduct, either in the circumstances giving rise to the cause of action, or in the proceedings, which makes such costs desirable as a form of chastisement: see para 219.
See also McBride Metal Fabricating Corp v. H & W Sales Company Inc. (2002), 59 O.R. (3d) 97
[7] Counsel for the plaintiff/respondent in the appeal argues that the conduct of the defendant/appellant Benson as outlined in the Endorsement dated February 26, 2015 in its filings and lack of filings in the appeal can fairly be characterized as an abuse of process, warranting an award of elevated costs against the defendant/appellant Benson. Counsel highlights the defendant/appellant’s failure to comply with the Rules, e.g. obtaining a Certificate of Stay without filing a Requisition for a Certificate of Stay.
[8] Counsel for the defendant/appellant contends that the defendant/appellant’s conduct complained of does not constitute the level that would in the circumstances of the case warrant the imposition of an elevated costs award. Counsel submits that the fact the position and submissions of the defendant/appellant on the motion were not accepted does not translate into bad faith warranting the sanction of imposing substantial indemnity costs against the defendant/appellant.
[9] I am unable to characterize the defendant/appellant’s conduct in the appeal as constituting an abuse of process in the circumstances as being “reprehensible, scandalous or outrageous’. An award of costs on the partial indemnity scale in the ordinary course will suffice to recognize the success obtained by the plaintiff/respondent and the failure of the defendant/appellant Benson in the motion.
[10] I have reviewed the Bill of Costs of the plaintiff/respondent, seeking partial indemnity scale costs of $5,918.25. I accept this submission and fix the plaintiff/respondent’s costs at $6,000.00, all-inclusive, payable forthwith by the defendant/applicant Benson to the plaintiff/respondent.
MACKENZIE J.
Released: March 27, 2015
CITATION: Polmat Group Inc. v. E Ring Corp., 2015 ONSC 2018
COURT FILE NO.: DC-14-12900
DATE: 20150327
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
POLMAT GROUP INC.
- and –
E RING CORP. INVESTMENTS LLC (IN TRUST), DAVE BENSON AKA DAVID BENSON, 2203746 ONTARIO INC. AND MACDONALD SAGER MANIS LLP
ENDORSEMENT
MacKenzie J.
Released: March 27, 2015