SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: C-594-10
DATE: 2012-10-05

RE: Sleep Clinic London Inc., Plaintiff

AND:

Mohan Merchea, Defendant

BEFORE: The Honourable Mr. Justice P. J. Flynn

COUNSEL:
David A. Sloane, for the Plaintiff
Daniel J. MacKeigan, for the Defendant

COSTS ENDORSEMENT

[ 1 ] The Defendant seeks $8,000 - $10,000 costs on a partial indemnity basis and argues that he was more successful on this motion than the Plaintiff.

[ 2 ] He brought the motion to obtain better particulars and/or to strike the Statement of Claim. He also sought to transfer the proceeding to London.

[ 3 ] I did transfer the proceeding to London after a one and a half day hearing, but like the Plaintiff, I question whether the Defendant’s motion was necessary.

[ 4 ] I found that in some ways the motion was premature and that the Defendant knew all along how he would plead his defence.

[ 5 ] Moreover, I found the Defendants 126 paragraph Factum to be ‘over-the-top’.

[ 6 ] While the issues were important, the Plaintiff over-complicated the proceeding by pleading nine different causes of action.

[ 7 ] Moreover, the Statement of Claim itself demonstrated confusion as to parties and duplicated allegations contained in the counterclaim to another action commenced in London.

[ 8 ] I have no quarrel with the hourly rates or time charged in the Defendant’s request. This court rejected several of the Defendant’s claims for relief. It’s main “success” can be seen in the transfer to London.

[ 9 ] Instead of awarding the Defendant $8,000 - $10,000 in partial indemnity costs, the Plaintiff claims it was just as successful as the Defendant or more so and should be awarded some costs, or that each should bear their own costs. In the final alternative, the Plaintiff pleads that the Defendant should be awarded costs in the amount of $2,000 - $3,000, at the most.

[ 10 ] To determine the fair and reasonable costs that ought to be awarded in accordance with the reasonable expectations of the losing party, I must, of course, determine which of these two is the losing party. While the Defendant was successful in having the action transferred to London where the Plaintiff’s sleep clinic is located and thus gained for himself a geographical advantage, I opined during argument and in my Ruling that the motion was premature and that the Plaintiff was seeking more than pleadings amendments.

[ 11 ] In my view, both parties have lost something by the argument of this motion. And while I cannot say that, at the end of the day, they will be shown to have attained equal success (or loss), in my view this is a case that calls out for the parties to bear their own costs. And so they shall. Order accordingly.

P.J. Flynn J.

Date: October 5, 2012