SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 08-44276
DATE: 2012-05-02

RE: Peter Du Manoir, Plaintiff

AND

Michael Du Manoir and Dumanoir Motors Incorporated, Defendants

BEFORE: The Honourable Justice Michel Z. Charbonneau

COUNSELS:
Mr. Michael S. Rankin, Counsel for Peter Du Manoir
Mr. John Melia, Counsel for Michael Du Manoir
Mr. Andrew J.F. Lenz, Counsel for Dumanoir Motors Incorporated

HEARD: February 7, 2012.

ENDORSEMENT ON COSTS

[ 1 ] I now have had the opportunity of considering the costs submissions provided by all three counsel. For the following reasons I conclude that the defendants should have their costs on a partial indemnity.

[ 2 ] First of all, I am of the view that there are a no circumstances which could warrant not applying the general and presumptive rule that costs should follow the event. This was a totally discrete step the plaintiff chose to take. The plaintiff knew the success of this motion would mean total success in the action. The plaintiff also knew that the defendants would vigorously oppose the motion. It turns out that the defendants were wholly successful. The plaintiff knew costs against him were the likely outcome of a dismissal of the motion and it is reasonable to infer that he believed the potential reward amply justified the risk. The plaintiff cannot now argue that the costs should be somehow reserved to the trial judge. This motion was not a close call. The probability of dismissal was real.

[ 3 ] On the other hand, I disagree with counsel for the defendants that this is a case where substantial indemnity costs are warranted. It was not unreasonable for the plaintiff to bring this motion. A motion will be declared unreasonable when it was brought with almost no hope of success. In his submissions the plaintiff’s counsel has properly summarized why this was not the case here. I also agree that wind-up motions are more often than not heard on a paper record. The motion was brought shortly after the Court of Appeal decisions interpreting the new summary judgment motion rule. There is no evidence of bad faith on the plaintiff’s part. The defendant’s offer for dismissal with costs is not a better result that the judgment rendered.

[ 4 ] I am of the view that given the complexity and importance of the issues raised by the motion, a reasonable amount to properly partially indemnify each defendant is as follows:

Du Manoir Motors Incorporated: $14,000.00

Michael Du Manoir: $10,000.00

[ 5 ] The above amounts are inclusive of disbursements and taxes and are payable by the plaintiff within 30 days.

Charbonneau, J.

Date: May 2, 2012

2012- ONSC 2552

COURT FILE NO.: 08-44276

DATE: 2012-05-02

ONTARIO SUPERIOR COURT OF JUSTICE RE: Peter Du Manoir, Plaintiff AND Michael Du Manoir and Dumanoir Motors Incorporated, Defendants BEFORE: The Honourable Justice Michel Z. Charbonneau COUNSELS: Mr. Michael S. Rankin, Counsel for Peter Du Manoir Mr. John Melia, Counsel for Michael Du Manoir Mr. Andrew J.F. Lenz, Counsel for Dumanoir Motors Incorporated ENDORSEMENT ON COSTS Charbonneau, J.

Released: May 2, 2012