COURT FILE NO.: CV-12-468516

DATE: 20130924

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Plaza Consulting Inc. operating as QA Consultants, Plaintiff

– AND –

Brian Grieve, Thomas Jefferson Downey, LeRoy Singh, and Cloudpipe Inc., Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Allyson M. Fischer and Mitchell R. Smith, for the Plaintiff

Lou Brzezinski and Lea Nebel, for the Defendants

HEARD: July 24, 2013

COSTS ENDORSEMENT

[1] In my endorsement released August 16, 2013, the Defendants were successful in resisting a motion by the Plaintiff for an interlocutory injunction. As the successful party in a hard-fought motion, with a number of affidavits sworn, cross-examinations conducted, factums exchanged, briefs of authorities researched and compiled, and a full day of argument in court, the Defendants certainly deserve their costs of the motion.

[2] Mr. Brzezinski and Ms. Nebel, on behalf of the Defendants, request partial indemnity costs up to the point at which there was a settlement offer, and substantial indemnity costs thereafter. Ms. Fischer and Mr. Smith, on behalf of the Plaintiff, submit that since the motion did not resolve all of the issues in the action, costs should be in the cause.

[3] There is a disagreement between the parties over a settlement agreement that may or may not have been entered into and then aborted. Further, there was an offer from the Defendants two months before the argument of the motion proposing that the motion and the action both be abandoned for no costs.

[4] All of the settlement talks and offers appear to have concerned both the motion and the action as a comprehensive package. There does not appear to be anything addressing the motion alone. Given that the action is still outstanding, I do not think that any of the various settlement proposals provide grounds for an award of substantial indemnity costs. Nevertheless, this is also not a case for costs in the cause. The injunction motion was self-contained and has been dismissed in its entirety. The successful Defendants deserve costs of the motion on a partial indemnity scale.

[5] Ms. Fischer and Mr. Smith complain that Mr. Brzezinski and Ms. Nebel are both senior counsel (33 years for Mr. Brzezinski and 11 years for Ms. Nebel), and together they were too senior and expensive a pair of lawyers to have handled this matter. By comparison, Ms. Fischer and Mr. Smith are far more junior (11 years for Ms. Fischer and 1 year for Mr. Smith).

[6] I would be very hesitant to dictate to counsel how their file should be staffed. In terms of the Defendants being represented by both Mr. Brzezinski and Ms. Nebel, suffice it to say that one should not argue with success. They are an effective team and secured the result in this motion that their clients doubtless wanted.

[7] That said, the costs requested by Mr. Brzezinski and Ms. Nebel are bit higher than one might expect from a one day motion, even a difficult one like this one. On a partial indemnity basis, they request fees ($93,220), disbursements ($6,258.44), and HST ($12,118.60), for a total of $111, 597.04. I am sure that they worked the many hours that their Bill of Costs recounts, and, as indicated above, I am equally sure that their investment of time and effort paid dividends for their clients. However, some reduction appears to me to be in order given that this was an interlocutory motion and not a full trial.

[8] Ms. Fischer and Mr. Smith have also submitted a Costs Outline. Their material indicates that, had they been successful in the motion, they would have requested, on a partial indemnity basis, fees ($72,515.50), disbursements ($3,324.25), and HST ($9,427.02), for a total of $85,266.77.

[9] I will use Ms. Fischer and Mr. Smith’s costs submissions as a common denominator for Mr. Brzezinski and Ms. Nebel’s costs. I assume that if Ms. Fischer and Mr. Smith submit that these amounts are reasonable for their combined 12 years of experience, they will agree that they are more than reasonable for Mr. Brzezinski and Ms. Nebel’s combined 44 years of experience.

[10] I order that the Plaintiff pay to the Defendants fees of $72,500, with HST on those fees in the amount of $9,425. To that I would add the Defendants’ full disbursements in the amount of $6,258.44. The Plaintiff shall therefore pay the Defendants costs in the all-inclusive amount of $88,183.44.

Morgan J.

Date: September 24, 2013