COURT FILE AND PARTIES
COURT FILE NO.: 10-47315
DATE: 2012/05/02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANDREW KULAR, Plaintiff
AND
ECOSOL SOLAR TECHNOLOGIES INC. et al., Defendants
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Phillip G. Hunt, for the Plaintiff
Keith A. MacLaren, for the Defendants
HEARD IN OTTAWA: April 5, 2012
costs endorsement
[ 1 ] The Plaintiff brought a motion seeking various items of relief:
Leave to deliver a Fresh Statement of Claim;
Motion to settle order of Master Roger;
Motion for contempt;
Motion for case management timetable;
Motion re. refusals and undertakings.
Defendants’ Position
[ 2 ] The Defendants did not oppose the first item of relief and an order was issued accordingly. The Defendants note that their consent to this issue was not sought in advance of the motion. They say that no costs should be payable.
[ 3 ] The motion to settle the order of Master Roger was adjourned to be heard by him. The Defendants set out the proper procedure for settling an order in their factum but the Plaintiff, nevertheless, proceeded to seek this relief. The Defendants seek one half of their costs, namely, $2,500.00 plus HST.
[ 4 ] The motion for contempt was dismissed as it was premature given that the order of Master Roger had not been settled and the terms of the order were disputed by the parties. The Defendants cross‑examined the Plaintiff in an attempt to determine the justification for the contempt motion. They seek their costs on a substantial indemnity basis for this part of the motion in the amount of $8,000.00 plus HST.
[ 5 ] The motion for a new timetable was dismissed since new parties and counsel are being brought into the proceedings as a result of the Fresh as Amended Claim. The Defendants seek their costs in the amount of $750.00 plus HST.
[ 6 ] There was divided success on the refusals and undertakings motion. Two refusals were in issue and I concluded that these were properly made. There were two minor undertakings which required clarification. The Defendants submit that neither party should be entitled to their costs on this issue.
[ 7 ] In total, the Defendants seek their costs in the amount of $11,200.00 plus HST, which represents one half of the amount set out in their costs outline submitted on a partial indemnity basis.
Plaintiff’s Position
[ 8 ] For reasons that are difficult to understand, the Plaintiff seeks costs of $3,500.00 for the unopposed motion to deliver the Fresh as Amended Statement of Claim.
[ 9 ] The Plaintiff claims that costs of the motion to settle the order should be reserved to Master Roger.
[ 10 ] The Plaintiff recognizes that the Defendants are entitled to costs on the contempt part of the motion but argues that these should be limited to $5,000.00.
[ 11 ] As for the motion for a case management timetable, the Plaintiff submits that this should be reserved to Master Roger.
[ 12 ] As for the refusals and undertakings, the Plaintiff seeks costs of $3,500.00.
[ 13 ] If I were to follow the Plaintiff’s submissions, the net result would be an award of $2,000.00 in his favour.
In Reply
[ 14 ] The Defendants maintain that they were the successful parties and that they only seek their costs thrown way on the motion to settle the order of Master Roger and on the motion to set a case management timetable.
Conclusion
[ 15 ] These Defendants were put to considerable expense to deal with a number of issues when the only matters that could realistically be addressed on this motion were a few undertakings and refusals where there was divided success. Costs are not awarded on a motion to amend a pleading unless it is unnecessarily opposed, which is not the case here. Plaintiff’s counsel did not understand the procedure in settling the order of Master Roger and this had to be addressed by the Defendants. The contempt motion was not only procedurally flawed, it was without merit as there was genuine issue as to the terms of the order of Master Roger. Contempt is a serious allegation and failure on this point should be sanctioned by an award of costs on a substantial indemnity scale. The timetable request was also without merit since new parties are now being added to these proceedings. As for the refusals and undertakings, many of these arose from the cross‑examination of Arthur Bergman, a non‑party shareholder. It was evident that the Plaintiff had not made this critical distinction and sought to have his answers bind the corporate Defendants.
[ 16 ] The Defendants were the successful parties on this motion and they are entitled to their costs, which I fix in the amount of $10,000.00 plus HST, which sum is payable forthwith.
Mr. Justice Robert N. Beaudoin
Date: May 2, 2012
COURT FILE NO.: 10-47315
DATE: 2012/05/02
ONTARIO SUPERIOR COURT OF JUSTICE RE: ANDREW KULAR, Plaintiff AND ECOSOL SOLAR TECHNOLOGIES INC. et al., Defendants BEFORE: Mr. Justice Robert N. Beaudoin COUNSEL: Phillip G. Hunt, for the Plaintiff Keith A. MacLaren, for the Defendants COSTS ENDORSEMENT Beaudoin J.
Released: May 2, 2012