ONTARIO

SUPERIOR COURT OF JUSTICE

Commercial List

COURT FILE NO.: 09-8418-00CL
DATE: 20130730

B E T W E E N:

BDO DUNWOODY LIMITED as Receiver for Wesbell Networks Inc.

Michael Simaan, for the Plaintiff

Plaintiff

• and -

BELL CANADA

Jennifer Teskey and Guy White, for the Defendant

Defendant

HEARD: in writing

MESBUR J

DECISION ON COSTS

[1] In my decision in this contract interpretation case I held that the defendant’s interpretation of the contract as permitting setoff was correct. I also agreed with the plaintiff’s assertion it was entitled to the contractual interest rate on unpaid amounts, rather than simply the prejudgment interest rate.

[2] I invited the parties to make submissions on costs. The plaintiff has provided a bill of costs on a partial indemnity basis of just over $94,000 inclusive of disbursements and taxes. The defendant does not seem to take issue with the quantum of costs, but says there should be no order as to costs, given the parties’ divided success in the action. Alternatively, the defendant suggests the court apply rule 57.01(4)(b) and recognize Bell’s success on the setoff issue by reducing the plaintiff’s costs to about 20% of the costs claimed.

[3] The defendant relies on the statement of Mark Orkin in the Law of Costs where he says:

Where in an action both parties are unsuccessful, so that in effect success is divided, costs may either be denied to both parties or apportioned. In some cases the practice is to give costs to neither party on the theory that it is simpler and probably as just as apportionment.

[4] This statement is particularly apt here. Both parties were unsuccessful on significant issues: Wesbell in relation to setoff, and Bell in relation to the interest rate. Put another way, Wesbell was successful on the interest rate issue, while Bell succeeded on setoff.

[5] In the result, I see both parties as either equally successful, or equally unsuccessful. There will therefore be no order as to costs.

MESBUR J.

Released: 20130730