ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 52917/11 (St. Catharines)
DATE: 201 2-02-29
BETWEEN:
Bruno Moos and Élyane Grenier Applicants – and – Vendage Corp. and Morrie Neiss Respondents
Geoff R. Hall, for the Applicants
Peter A. Mahoney, for the Respondents
The Honourable mr. justice P. B. Hambly
ruling on costs
[ 1 ] In my judgment dated October 17, 2011, I held that there was no obligation for Mr. Neiss to provide further funding for Alvento. I ordered that Alvento be sold on the "open market as a going concern". The parties could not agree on the terms of a sale. Moos and Grenier presented two proposals that did not contain a listing price. One proposal required "a monthly working fee of $5,000 per month". Mr. Neiss provided a proposal of a listing with a real estate agent, which contained a suggested listing price, but which did not contain a suggested length of the listing agreement. In my judgment dated December 29, 2011, I ordered that Alvento be listed for sale with the real estate agent proposed by Mr. Neiss at the suggested listing price. The parties were able to agree on the length of the listing agreement which made a further application to the court unnecessary.
[ 2 ] In my judgment dated December 29, 2011 I stated the following:
[6] ... The positions that they have taken for the sale of Alvento are inconsistent with my judgment. I agree with Mr. Mahoney that they are designed to delay the sale ...
[ 3 ] Mr. Neiss, through Mr. Mahoney, requests costs of the proceedings which preceded my judgment dated December 29, 2011, in the amount of $7,769, including HST, on a partial indemnity basis. Mr. Hall, on behalf of Moose and Grenier, submits that there should be no order for costs or a maximum of $2,500. In my judgment dated October 17, 2011, I stated the following:
[22] ...At the outset Neiss was the financier and Bruno and Élyane were the farmers and wine producers. Neiss knows nothing about the production of grapes and wine or the operation of a winery. The relationship between Bruno and Élyane on the one side and Neiss on the other has become dysfunctional. Neiss will not provide further funding. Bruno and Élyane cannot afford to run the operation by themselves. Alvento is not producing sufficient revenue to be self-sustaining ...
Although Mr. Neiss was largely successful, I did not order that Moose and Grenier pay costs.
[ 4 ] Running through the material are themes that Neiss is an experienced businessman, albeit in the pharmacy industry and that he is wealthy. Lacking are any particulars of how experienced he is and how wealthy he is. All of the life savings of Moose and Grenier are in Alvento. One wonders at the wisdom of Moose and Grenier, whose experience in the wine industry was gained in Italy and Neiss, whose business experience was gained in the pharmacy industry, staking so much on the development of a winery from scratch in southern Ontario.
[ 5 ] There will be no order as to costs. In Boucher v. Public Accountants 2004 14579 (ON CA) , [2004] O.J. No. 2634, the Court of Appeal in the judgment of Justice Armstrong stated the following:
37 … There are obviously cases where the prospect of an award of costs against the losing party will operate as a reality check for the litigant and assist in discouraging frivolous or unnecessary litigation …
[ 6 ] I caution Moose and Grenier that they must cooperate in the sale of Alvento. If they do not and further court applications are necessary there may be significant costs consequences for them.
P.B. HAMBLY J.
Released: February 29, 2012
COURT FILE NO.: 52917/11 (St. Catharines)
DATE: 2012-02-29
ONTARIO SUPERIOR COURT OF JUSTICE
Bruno Moos and Élyane Grenier Applicants – and – Vendage Corp. and Morrie Neiss Respondents
Ruling on costs
P.B. Hambly J.
Released: February 29, 2012
/lr