E.O.E. GROUP INC., PLAINTIFF

v.
KONICA MINOLTA BUSINESS SOLUTIONS (CANADA) LTD. AND DOCUCOMM BUSINESS SYSTEMS INC., DEFENDANTS

CV-11-423236
2012 ONSC 600

MOTION HEARD: DECEMBER 23, 2011

David Rubin for the plaintiff

Ronald B. Moldaver Q.C. for the defendant Docucomm Business Systems Inc.

ENDORSEMENT - COSTS

Master R.A. Muir -

[ 1 ] This costs endorsement is in respect of a motion brought by the plaintiff pursuant to Rule 25.11 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 (the “Rules”) for an order striking out certain paragraphs of the statement of defence of the defendant Docucomm Business Systems Inc. (“Docucomm”). In my endorsement dated January 6, 2012 I requested that the parties provide the court with written costs submissions. I have now received and reviewed those submissions.

[ 2 ] The plaintiff seeks its costs on a partial indemnity basis. It argues that it achieved substantial success on the motion. Its costs outline sets out partial indemnity costs of $7,004.43, inclusive of HST and disbursements. Although the plaintiff acknowledges that this motion was not complicated, it points out that it arose within the context of a significant commercial dispute and was necessary in order to ensure that the pleadings were regularized in order to reduce the complexity and ambit of the discovery process.

[ 3 ] Docucomm argues that in view of the plaintiff’s less than complete success, there should be no order with respect to the costs of this motion. Alternatively, Docucomm submits that the costs being requested by the plaintiff should be reduced to reflect the fact that it was not completely successful. Finally, Docucomm argues that the costs sought by the plaintiff are excessive in the circumstances of this motion.

[ 4 ] The court’s general authority to award costs as between parties to litigation is found in section 131(1) of the Courts of Justice Act , R.S.O. 1990, c. C.43, which provides that costs are in the discretion of the court. Rule 57.01(1) sets out a non-exhaustive list of factors the court is to consider when awarding costs. Rule 57.03(1) deals with the costs of interlocutory motions and provides that as a general rule the court should fix the costs of a motion and order that they be paid within 30 days. Rule 1.04(1.1) is also applicable. It requires the court, when applying the Rules , to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding. In general terms, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier , 2002 25577 (ON CA) , [2002] O.J. No. 4495 (C.A.) at paragraph 4 . In Clarington (Municipality) v. Blue Circle Canada Inc. , 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:

Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[ 5 ] These are the factors and principles I have considered in determining the appropriate costs order in the circumstances of this motion.

[ 6 ] In my view, the plaintiff is entitled to costs. The plaintiff was largely successful. Three of the four impugned paragraphs have been struck out. Docucomm has not identified any other factors that would justify a departure from the court’s general practice of awarding costs to the successful party.

[ 7 ] However, it is my view that the costs requested by the plaintiff are excessive in the circumstances. At the conclusion of the argument of this motion, Mr. Moldaver suggested that costs in the amount of $2,500.00 would be fair and reasonable. Mr. Moldaver’s costs outline sets out partial indemnity costs of $2,213.81, inclusive of HST and disbursements.

[ 8 ] I am of the view that Mr. Moldaver’s position is the appropriate one. This was not a complicated motion. The motion dealt with four short paragraphs in the statement of defence involving relatively straightforward and brief submissions. Although the issues in this action may be significant, the issues dealt with on this motion were not. I agree that the outcome of this motion may result in a modest savings in terms of the discovery process. However, the motion did not advance the substance of the litigation to any degree.

[ 9 ] I also agree with Mr. Moldaver that there should be a reduction to allow for the fact that the plaintiff was not completely successful.

[ 10 ] I have therefore concluded that it is fair and reasonable in the circumstances of this motion that Docucomm pay the plaintiff’s costs of this motion, fixed in the amount of $2,000.00, inclusive of HST and disbursements, payable within 30 days.

Master R.A. Muir

DATE: January 25, 2012