Costs Endorsement

Court File No.: CV-11-418177
Date: 20120221
Superior Court of Justice - Ontario

Re: Gulfview Contracting Ltd. and 56 Lippincott Development Corp.

Plaintiffs

And:

Liquid Rubber Engineered Coatings Ltd. and John Bilbija

Defendants

Before: Mr. Justice Lederer

Counsel:
Catherine Dimarco, for the Plaintiffs (responding parties)
Kim Ferreira, for the Defendants (moving parties)

COSTS ENDORSEMENT

[1] This is an action for breach of contract. The motion resulted in the striking of the Statement of Claim as against the officer and director of the defendant corporation. It was alleged that he directed that the work not be performed in accordance with the contract and was, thus, liable for inducing breach of contract.

[2] The fact that an individual directs acts of a corporation that may lead to the breach of a contract is not, in itself, enough to sustain an independent action against that person. For such an action to succeed, it is necessary that the person be acting without bona fides and outside his or her authority. Without this, the pleading would, and in this case did, fail to disclose the basis for an action against the director.

[3] The Statement of Claim was struck as against the individual defendant. He now seeks his costs.

[4] There is no reason why costs should not follow the event. This is not, as the plaintiff would have it, a case where the result is mixed. The fact that leave to amend the pleading was provided is not a demonstration of success. It is an opportunity that, if it can be met, will allow the plaintiff to have its day in court.

[5] This was a motion that raised a question that was suitable for determination early in the process. So far as I can see, there is no reason why costs should be at an elevated scale.

[6] It is of no significance that the plaintiff offered to allow for the withdrawal of the claim without costs before preparing the motion material. The point raised was not without substance and the plaintiff was justified in asking that it be determined by the court. For the same reason, I am not prepared to consider the fact that the plaintiff offered to re-draft the Statement of Claim.

[7] The defendant seeks cost, on a partial indemnity scale, of $7,807.77. Contrary to the submissions of counsel for the plaintiff, I do not find this to be excessive, either in respect of the time spent or the amount the plaintiff, as the losing party, could have anticipated being required to pay.

[8] I award costs to the defendants (the moving parties) in the amount of $7,807.77.

LEDERER J.

Date: 20120221