ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-CV-004796
DATE: July 16, 2013
BETWEEN:
1615540 ONTARIO INC, carrying on business as Healing Hands Massage Therapy Clinic
Plaintiff
– and –
JOY NICOLE SIMON and ALEN M. KATIC
Defendants
Jeffrey Radnoff, for the Plaintiff
Katherine Henshell, for the Defendants
HEARD: In writing
PERELL, J.
REASONS FOR DECISION
[1] 1615540 Ontario Inc. carrying on business as Healing Hands Massage Therapy Clinic brought a motion for an interlocutory injunction requiring the Defendants Dr. Joy Nicole Simon and Alen Katric to return patient files and records and certain other property that the Defendants had in their possession. Subject to certain terms, I granted the motion. My Reasons for Decision are reported as 1615540 Ontario Inc. carrying on business as Healing Hands Message v. Simon, 2013 ONSC 2986.
[2] As for costs, my tentative view was that this was an appropriate case to make costs in the cause. However, if the parties disagreed, I invited them to make submissions in writing within 40 days.
[3] Healing Hands now requests costs of $12,878.50 on a partial indemnity basis. The Defendants submit that costs should be in the cause.
[4] Healing Hands submits that it would be extremely unfair not to award it costs because Dr. Simon was unprofessional as a medical practitioner in how she dealt with the patients’ records and that she lied to the patients about her plans for a new office. Healing Hands submits that it was the successful party, and it complains that after the release of the Reasons, Dr. Simon made a complaint to Mr. Mahmoods’ regulator. It relies on cases where costs have been awarded on injunction motions to the successful party plaintiff. See: S. Saville Holdings Inc. v. Suzuki Canada Inc., [1995] O.J. No. 2280 (Gen. Div.); Rogers v. Greater Sudbury (City) Administrator of Ontario Works (2001), 2001 28087 (ON SC), 57 O.R. (3d) 467 (S.C.J.); and Down Estate v. Racz-Down, 2010 ONSC 2575.
[5] It may be noted that rule 57.03(1)(a) does not make mandatory the fixing of costs and the direction that they be payable within 30 days; the rule admits of the exception of where the court is satisfied that a different order would be more just. The court's residual discretion about costs remains: Intercontinental Forest Products SA v. Rugo 2004 33353 (ON SCDC), [2004] O.J. No. 4190 (Div. Ct.).
[6] Justice Sharpe, in his text Injunctions and Specific Performance, states at p. 2-91:
Where the defendant successfully resists the plaintiff's motion for an interlocutory injunction, costs may be awarded forthwith. It has been held that where the motion was groundless and based upon unfounded allegations of fraud, deceit and conspiracy, it may be appropriate for the court to fix the costs on a solicitor and client scale and require that they be paid forthwith. On the other hand, it would be unusual to award costs of an interlocutory injunction motion to the successful plaintiff prior to trial. As there has been no final determination of the rights of the parties, but rather an order to protect the plaintiff's position pending trial, the preferable course is to reserve the question of costs to the trial judge.
[7] As Justice Sharpe points out, the ultimate merits of the plaintiff’s claim are not determined in a successful motion for an interlocutory motion, and unless there is some particular reason to award costs immediately, the preferable course is to reserve the question of costs to the trial judge; hence, costs in the cause. This approach has often been followed. See: Tillsonburg Foamtec Inc. v. Free, [2005] O.J. No. 2255 (S.C.J.); Penn-Co Construction Canada (2003) v. Constance Lake First Nation, [2008] O.J. No. 3733 (S.C.J.); Erinwood Ford Sales Ltd. v. Ford Motor Co. of Canada, 2005 23333 (ON SC), [2005] O.J. No. 2791 (S.C.J.); Rogers Cable TV Ltd. v. 373041 Ontario Ltd. [1994] O.J. No. 844 (Gen. Div.).
[8] The action at bar is not over, and it remains to be determined whether the Plaintiffs will succeed at trial in which case some different order than I made about the files may be required. I have not been convinced that my initial view about costs was incorrect, and, therefore, I order costs in the cause.
Perell, J.
Released: July 16, 2013
COURT FILE NO.: 13-CV-004796
DATE: July 16, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1615540 ONTARIO INC, carrying on business as Healing Hands Massage Therapy Clinic
Plaintiff
‑ and ‑
JOY NICOLE SIMON and ALEN M. KATIC
Defendants
REASONS FOR DECISION - COSTS
Perell, J.
Released: July 16, 2013.