SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-09-389433
DATE: 20121011

RE: AF Industries Limited Liability Corporation c.o.b. as Flom LBS Consulting, Plaintiff

AND:

Complete Innovations Inc., Defendant

BEFORE: Pollak J.

COUNSEL:
Michael Simaan, for the Plaintiff
James Jagtoo, for the Defendant

HEARD: June 25–29, 2012

ENDORSEMENT RE COSTS

[1] I have considered the written costs submissions of the parties. At trial the parties agreed that $41,000 is a reasonable amount to award the successful party on a partial indemnity basis. Counsel for the successful Plaintiff now seeks to adjust this figure, as certain amounts were not included in his original Bill of Costs.

[2] The Plaintiff also relies on a Rule 49 Offer, under the Rules of Civil Procedure (the “ Rules ”), to claim costs on a substantial indemnity basis from the date of the Offer.

[3] In reply, counsel for the Defendant submits that as a result of the Court’s finding of misleading conduct on the part of the Plaintiff, the Court should exercise its discretion to refuse a costs award to the Plaintiff, and instead award partial indemnity costs to the Defendant.

[4] Having considered the factors set out in the Rules and by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), I am of the view that it would be fair in the circumstances to award costs of $41,000 to the successful Plaintiff on a partial indemnity basis throughout.

[5] With respect to the Plaintiff’s request to increase costs beyond $41,000, I decline this request because the parties already agreed on the reasonableness of this amount. It would not be just to now disregard this agreement due to an oversight by counsel.

[6] Further, on the basis of the above-noted factors I have considered, I am exercising my discretion to decline to award costs on a substantial indemnity basis from the date of the Offer due to the misleading conduct of the Plaintiff, which I have referred to in my decision. I do not, however, agree with the Defendant’s submission that it should be awarded costs by reason of this conduct. In my opinion, the sanction of denying the Plaintiff substantial indemnity costs from the date of the Offer is appropriate in the circumstances.

[7] I do not agree with the Defendant’s submissions that the Plaintiff “got away with his misconduct”. As counsel for the Defendant noted in the cost submissions, the Defendant may have had alternative remedies against the Plaintiff that were not pleaded or argued in court. This failure by the Defendant had a direct bearing on the result in this matter.

[8] I therefore award the amount of $41,000 as costs on a partial indemnity basis, to be paid by the Defendant to the Plaintiff; this sum is inclusive of all applicable disbursements and taxes.

Pollak J.

Date: October 11, 2012