SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Canadian Solar Solutions Inc., Applicant

AND:

RA Solar Leasing Inc., Respondent

BEFORE: D. M. Brown J.

COUNSEL:
V. DaRe, for BDO Canada Limited, the Receiver of RA Solar Leasing Inc.

P. Guy and K. Montpetit, for the Applicant

B. Morris, for RA Solar Ltd.

HEARD: January 25, 2013; subsequent written cost submissions.

REASONS FOR DECISION - costs

I. Positions of the parties

[1] By Reasons dated January 29, 2013 (2013 ONSC 671) I granted the motion of the Receiver, BDO Canada Limited, by concluding that the information, documents and data about the business of the debtor, RA Leasing, and its Projects contained in the Solstice Database and the Valuation Model, as well as both those computer programs which contained the information, constituted “Records” within the meaning of paragraph 5 of the Appointment Order, and I ordered RA Ltd. and Marshall, as “Persons” within the meaning of the Appointment Order, to comply with paragraphs 4, 5 and 6 of the Appointment Order no later than 5 p.m. on Wednesday, January 30, 2013.

[2] The Receiver has waived seeking its costs of the motion conditional upon Canadian Solar being awarded costs. Canadian Solar is funding the receivership. The Receiver supported Canadian Solar’s request for an award of partial indemnity costs in the amount of $10,682.81, plus taxes, on a joint and several basis against RA Solar Ltd. and Steven Marshall.

[3] RA Solar Ltd. submitted cost submissions. It argued that since the Receiver failed to obtain a declaration of ownership in the Valuation Model and the Solstice Database, RA Solar Ltd. should be entitled to an award of costs against Canadian Solar in the amount sought by Canadian Solar against it. Alternatively, in the event no award of costs was made in favour of RA Solar Ltd., it submitted that each side should bear its own costs.

II. Analysis

[4] The Receiver substantially succeeded on its motion. The motion sought to enforce the access to records provisions in the Appointment Order. I ordered such access with respect to the Valuation Model and Solstice Database, but deferred the issue of any use of the Valuation Model in the sales process pending a determination of the ownership of that model. As I held in paragraphs 37 and 42 of my Reasons, the ownership of the models/database was not relevant to the question of whether they were “Records” within the meaning of the Appointment Order. Accordingly, the moving party is entitled to costs on a partial indemnity basis and, given the parties agreement that Canadian Solar is funding the receivership, Canadian Solar is entitled to such an award of costs.

[5] Against whom? Certainly against RA Solar Ltd., who unsuccessfully resisted the motion. But, also against Steve Marshall, whom the Receiver’s Notice of Motion named as the respondent against whom it sought the access and delivery of property order. In paragraph 37 of my Reasons I held that Marshall had delayed in helping the Receiver to obtain full access to and copies of the information stored on the Solstice Database in order to squeeze some money out of the Receiver. In paragraph 39 I held that Marshall was hindering the Receiver’s efforts to obtain Records under the Appointment Order. Marshall is a “Person” within the meaning of the Appointment Order. He hindered the Receiver in its efforts to obtain access to Records of the debtor to which it was entitled under the Appointment Order. Therefore, Marshall should be jointly and severally liable with RA Solar Ltd. for the costs of the motion.

[6] Given the position of RA Solar Ltd. that “the amount being sought by Canadian Solar Leasing Inc. is reasonable and requests that same be paid to itself as costs”, I conclude that an order of costs of $10,682.81, inclusive of disbursements and applicable taxes, would be a fair and reasonable partial indemnity award in the circumstances: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3rd) 291 (C.A.) and Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.).

[7] Accordingly, I order RA Solar Ltd. and Steve Marshall to pay to Canadian Solar Leasing Inc. costs of $10,682.81 within 30 days of the date of this order.

D. M. Brown J.

Date: March 13, 2013