ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-CV-428266
DATE: July 20, 2012
BETWEEN:
Zafir Holdings Inc.
Plaintiff
- and -
Kingspan Insulated Panels Ltd.
Defendant
COUNSEL:
• Patrick Summers for the Plaintiff
• Patrick Greco for the Defendant
HEARING DATE: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[ 1 ] The Defendant Kingspan Insulated Panels Ltd. brought a summary judgment motion to dismiss the action brought by Zafir Holdings Inc.
[ 2 ] For Reasons for Decision reported Zafir Holdings Inc. v. Kingspan Insulated Panels Ltd. , 2012 ONSC 3329 , I granted the motion and dismissed Zafir’s action.
[ 3 ] Relying on a term found in the release that was the foundation of its success on the summary judgment motion, Kingspan seeks costs on a solicitor and client basis in the amount of $30,916.01 or on a substantial indemnity basis of $21,936.75. In the alternative, it seeks costs on a partial indemnity basis in the amount of $14,737.24.
[ 4 ] Zafir concedes that Kingspan is entitled to costs but submits that the scale of costs should be on a partial indemnity basis in the amount of $11,000.00.
[ 5 ] Zafir submits that the provision in the release relied upon by Kingspan is referable to third party proceedings and does not entail any right to solicitor and client costs in the immediate litigation. Zafir submits that the normal rule that the successful party should recover costs on a partial indemnity basis should apply in the immediate case.
[ 6 ] I agree with Zafir that the provision in the release is not applicable, and I also agree that the normal rule about costs on a partial indemnity basis should apply in the immediate case.
[ 7 ] I appreciate that I was unimpressed with Zafir’s substantive defence to the motion for summary judgment, but there was nothing untoward in its conduct of the litigation, and I see no basis to make a punitive costs award against Zafir.
[ 8 ] I disagree with Zafir that Kingspan’s claim for costs on a partial indemnity basis is excessive. Having regard to the various factors set out in Rule 57.01 (2) that guide a court in awarding costs, the amount claimed by Kingspan is fair and reasonable.
[ 9 ] Accordingly, I award Kingspan costs of $14,737.24, all inclusive.
Perell, J.
Released: July 20, 2012
COURT FILE NO.: 11-CV-428266
DATE: July 20, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Zafir Holdings Inc.
Plaintiff
‑ and –
Kingspan Insulated Panels Ltd.
Defendants
REASONS FOR DECISION - COSTS
Perell, J .
Released: July 20, 2012.