COURT FILE AND PARTIES

COURT FILE NO.: 00-CL-3627
DATE: 2012-07-06
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CANADIAN TIRE CORPORATION, LIMITED, Plaintiff

AND:

ROBERT ERIC OFFENBACHER a.k.a. BOB YOUNG, IMAGECOM SIGN PRODUCTS INC., AND MAIWARNAISHWARIE SUKHDEO a.k.a. ESHWARI OFFENBACHER, Defendants

AND BETWEEN:

IMAGECOM SIGN PRODUCTS INC., Plaintiff by Counterclaim

AND:

CANADIAN TIRE CORPORATION, LIMITED, Defendant by Counterclaim

BEFORE: CUMMING J.

COUNSEL:
A. Hamilton, for the Plaintiff

Frances M. Wood, for the Defendants

COSTS ENDORSEMENT

[ 1 ] I released my reasons for decision in this matter on May 24, 2012. See Canadian Tire Corporation, Limited v. Offenbacher , 2012 ONSC 3071 .

[ 2 ] The parties were invited to make written submissions as to costs, which they have done.

General Principles as to Costs

[ 3 ] Costs are in the discretion of the Court: s. 131 , Courts of Justice Act , R.S.O. 1990, c. C.43 and Rule 57.01 of the Rules of Civil Procedure . In Ontario, the normative approach is first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial-indemnity basis; and third, that costs are payable forthwith, i.e. within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms.

[ 4 ] Rule 57.01 (1) lists a broad range of factors for the Court to consider, including the result achieved in the proceeding, the complexity of the proceeding, the importance of the issues and whether any step in the proceeding was improper, vexatious or unnecessary.

[ 5 ] The Court’s discretion to award costs is designed to further three main objectives in the administration of justice, being: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to encourage settlements; and (3) to discourage inappropriate behaviour by litigants in their conduct of the proceedings. See British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 , [2003] 3 S.C.R. 371; Fong v. Chan (1999), 46 O.R. (3d) (C.A.); Fellowes ; McNeil v. Kansa General Insurance Co. (1997), 37 O.R. 93 d) 464 (Gen. Div.) and; Skidmore v. Blackmore (1995), 1995 1537 (BC CA) , 122 D.L.R. (4 th ) 330 (B.C.C.A.).

[ 6 ] In exercising its discretion, a Court must produce a result that is fair and reasonable in all the circumstances: Boucher v. Public Accountants Council (Ontario) , (2004), 2004 14579 (ON CA) , 71 O.R. (3d) 291 (C.A.).

Submissions as to Costs

[ 7 ] The Defendants’ submit there was a division of success but that their offer to settle dated April 17, 2012 is to be taken into account. However, it is noted that the offer to settle (para. 4) provided that the Defendants pay only a balance of $10,691.41 to the Plaintiff. My decision (paras. 37 and 58) gave judgment in favour of the Plaintiff in the amount of $42,406. In my view, the so-called offer to settle is of no import.

[ 8 ] In my view, on balance, the Plaintiff was substantially successful in respect of the motion and cross-motion under consideration.

[ 9 ] A great deal of time was spent in dealing with the Defendants’ submissions about the outstanding costs awards together with the matter of post-judgment interest being payable in respect of these costs awards. The Defendants belaboured this issue which, in my view, was straightforward and simple. The Plaintiff was successful in respect of this issue (para. 37 of the decision) both in respect of the quantity payable to the Plaintiff and in receiving an Order that failure to pay such outstanding costs within 30 days will result in the defence and counterclaim being struck.

[ 10 ] The other main issue argued was the Defendants’ assertion that Rule 48.15 (6) and/ or Rule 48.14 (3) and (13) were applicable to result in a dismissal of the Plaintiff’s statement of claim. The Defendants were unsuccessful on this submission. (The Plaintiff in its cross-motion argued that Rule 48.15 (6) was likewise applicable to strike the counterclaim. Although the Plaintiff was unsuccessful in this regard, the cross-motion was advanced to match the Defendants’ motion to dismiss the Plaintiff’s claim by reason of Rule 48.15 (6). If the Defendants were to be successful on their Rule 48.15 (6) motion, then on the same factual background as to delay, it was arguable that the Defendants counterclaim should be likewise struck for the same reasons.)

[ 11 ] Counsel for the Defendants submits that they succeeded on the “main issue” of dissolution of the Mareva injunction. Very little time, if any, was spent in argument about the Mareva injunction as a stand-alone issue. The Defendants wanted the injunction removed but argued this point within the context of dissolution being a follow-on consequence upon a successful result to their motion for dismissal because of Rule 48.15 (6).

[ 12 ] My ruling (para. 59 of my Reasons) to vacate the Mareva injunction was taken on the Court’s initiative within the context that a temporary injunction left in place for some 12 years with neither party taking any real initiative to advance the proceeding is not consistent with good practice and a proper judicial process and, therefore, should be vacated.

Disposition

[ 13 ] For the reasons given, I find the Plaintiff was substantially successful and is properly to be awarded costs.

[ 14 ] The Bill of Costs submitted is for $27,900.51, inclusive of fees and disbursements on a partial-indemnity scale. I fix the costs payable by the Defendants (on a joint and several basis) on a partial-indemnity scale to the Plaintiff at $20,000 inclusive of all fees, disbursements and applicable taxes. Such costs award is payable forthwith, i.e. within 30 days.

CUMMING J.

Date: July 6, 2012