Court File and Parties

Court File No.: CV-18-598913 Date: 2020-01-17 Superior Court of Justice - Ontario

Re: Clive Waugh, Plaintiff And: Bentworth Outdoor Storage Inc., Hy Hershberg, Eshai Hershbert, Yaakov Kozak aka Yan Kosha, Emily J. Pinckard, D Saulnier Auto o/b D Saulnier Auto Parts & Wreckers, Defendants

Before: M.A. Sanderson J.

Counsel: Jeffrey Radnoff, for the Plaintiff Mike Cremasco and Andrea LeDrew for the Defendants Bentworth Outdoor Storage Inc. and Hy Hershberg

Heard: September 24, 2019

FINAL COSTS ENDORSEMENT

[1] I have now reviewed the submissions made in response to my request for further information contained in my Preliminary Costs Endorsement in respect of Waugh's motion to enforce whatever undertaking was given to the Court on June 3, 2016.

[2] Although no formal leave application was apparently brought, I have been advised that before she wrote her endorsement providing a date for the hearing of the undertakings motion, Matheson J. was provided with the June 3, 2016 endorsement of Myers J. containing the leave requirement.

[3] She was therefore aware of the requirement for leave.

[4] After she reviewed the endorsement, she proceeded to schedule the motion.

[5] In her endorsement, she specifically mentioned the importance of undertakings to the Court.

[6] At no time before I sought further information on the leave issue did Counsel for Bentworth object on the basis that the undertakings motion should not have been heard because no leave had been given.

[7] In all the circumstances here, I am of the view that it would be unfair to impose costs on a substantial indemnity basis on Waugh.

[8] I therefore order Waugh to pay costs of the undertakings motion to Bentworth, on a partial indemnity basis, fixed at $14,000 plus HST.

[9] No costs are payable to Pinckard as neither she nor her counsel appeared on the return of the motion.

M.A. Sanderson J. Date: January 17, 2020