SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: CV-11-435886
Date: 20120615

RE: madinat qaboos services llc, double crown group llc and adham tariq bin taimur al said
Plaintiffs/Responding Parties

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mucho burrito international inc., extreme pita international inc., purblendz international inc., alex rechichi, mark rechichi, sean black, john doe and jane doe
Defendants/Moving Parties

Before: Justice S. M. Stevenson

Counsel:
Katherine J. Menear, for the Plaintiffs/Responding Parties
Lloyd Hoffer, for the Defendants/Moving Parties on the Motion
David Sterns, for the Defendants/Moving Parties as to Costs

Date Heard: January 30, 2012

ENDORSEMENT AS TO COSTS

[ 1 ] In my Reasons for Decision, released March 27, 2012 with respect to the motion brought by the Defendants, I asked counsel to provide their written submissions with respect to costs which I have now reviewed.

[ 2 ] I have taken into consideration the factors set out in Rule 57 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 which the court may consider when exercising its discretion in awarding costs under section 131 of the Courts of Justice Act , R.S.O. 1990, c. C.43 . I have also considered the relevant case law .

[ 3 ] This was a motion to strike brought by the Defendants. The Plaintiffs were successful in that the motion to strike was dismissed with respect to the individual and Doe Defendants; however, the claim for unjust enrichment was struck with leave to amend.

[ 4 ] The law in the area is somewhat complex as it relates to franchises and both parties approached the issues differently. The issues were important to both sides and if successful, the moving Defendants would have had the action dismissed against the individual and Doe Defendants and the Plaintiffs if successful, which they were, could continue their claim against the Defendants.

[ 5 ] I do find that the costs submitted by the Plaintiffs were unusually high for this motion which was two hours in duration. The Plaintiffs are seeking substantial indemnity costs in the amount of $29,178 or, in the alternative, $19,458 and disbursements of $1,037 fixed and payable within 30 days. The Defendants submit that an order of $7,500 inclusive of fees, disbursements and taxes is appropriate.

[ 6 ] As stated in Boucher v. Public Accountants Council for Ontario , 2004 14579 (ON CA) , [2004] O.J. No. 2634 at para. 26 : “The objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.” As also stated in Boucher , the fixing of costs is not a mechanical exercise and does not begin and end with a calculation of hours times rates.

[ 7 ] I do not find that the Defendants could have reasonably expected to pay the amount of costs sought by the Plaintiffs on this motion given the nature of the motion and the issues involved. I do, however, recognize that there was additional work and effort that had to be undertaken by the Plaintiffs on this motion given the lack of case law directly on point and the arguments which were made by both sides. Taking into consideration the factors set out in Rule 57 and Boucher , I order the Defendants to pay to the Plaintiffs the sum of $11,000.00, inclusive of HST and disbursements within 30 days.

Stevenson J.

Released: June 15, 2012