Court File and Parties

Court File No.: CV-11-24696
Date: 2012-04-04
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ADS PUBLISHING INC, Plaintiff

AND:
1806062 ONTARIO INC o/a HOTEL KEY DESIGN and PAT FISHER, Defendants

Before: The Honourable Mr. Justice M. Dale Parayeski

Counsel:
Barry L. Yellin, Counsel for the Plaintiff
Bradley J. Troup, Counsel for the Defendants

Heard: April 4, 2012

Costs ruling

[ 1 ] As the parties were unable to agree upon the issue of costs relative to the long motion heard by me on August 23 rd , 2011, their counsel have made written submissions in that regard. I dismissed the plaintiff’s motion which, by the time it was argued, had been narrowed such that the primary issue was injunctive relief based upon an alleged “passing off”.

[ 2 ] After careful consideration of the costs submissions and of the Rules regarding costs, I see no substantive reasons to deviate from the usual practice of awarding costs to the successful defendants. Of course, there remain the issues of the scale and quantum of those costs.

[ 3 ] It appears that the plaintiff expanded the issues to be addressed at the motion and then focussed them at the last minute to the one mentioned above. En route to that position, the parties collectively conducted four cross-examinations and prepared materials based upon the expanded scope. Under this circumstance, I am of the view that the defendants are entitled to costs on the substantial indemnity basis. The without prejudice email of August 17 th , 2011, from plaintiff to defence counsel does not alter that view.

[ 4 ] As for quantum, I am of the view that the $16,000.00 being sought by the defendants is excessive. Their costs outline reflects some degree of duplication of effort. Moreover, it is lacking in meaningful particulars. The appropriate quantum is $12,500.00 all-inclusive.

[ 5 ] Order accordingly.

The Honourable Mr. Justice M. Dale Parayeski

Date: April 4, 2012