SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 07-CV-333597PD1
DATE: 20120416

RE: DAVID GERLACH and 1298046 ONTARIO INC., Plaintiffs

and

AGF TRUST COMPANY, Defendant

BEFORE: S. LEDERMAN J.

COUNSEL:
Devinder Bath , for the Plaintiffs
Howard W. Reininger , for the Defendant

DATE HEARD: By written submissions

costs eNDORSEMENT

[ 1 ] There was divided success on the issues raised by the defendant on its motion for summary judgment.

[ 2 ] The defendant succeeded in obtaining orders striking out the claim of the personal plaintiff and the claim for damages for improvident sale. Although not conceded, plaintiffs’ counsel did not submit any evidence in respect of these issues or make any meaningful responsive argument to resist these orders.

[ 3 ] The main issue on the motion was the responsibility of the defendant, as mortgagee in possession, to insure the interest of the plaintiff corporation. This issue took up most of the argument on the motion and formed the substance of the reasons. This issue was the most substantial and significant one. As the plaintiff corporation was successful on this issue, it is entitled to its costs. However, those costs should be reduced to reflect the divided success.

[ 4 ] Based on the factors set out in R.57.01, I would assess the party and party costs of this motion at $12,000.00 all-inclusive and would award the plaintiff corporation fifty per cent (50%) thereof because of the divided success.

[ 5 ] Accordingly, the plaintiff corporation will have its costs fixed at $6,000.00 all-inclusive payable by the defendant within 30 days.

S. Lederman J.

Date: 20120416