SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-00445865-0000

DATE: 20130201

RE: KNEW ORDER CO., LTD., Plaintiff

AND:

2291955 ONTARIO INC., carrying on business as TAI GROUPS INC. and CHIA YANG [also known as “JAMES”] SHEN, Defendants

BEFORE: T. McEwen J.

COUNSEL:
Matthew J. Latella and A. Shafey, for the Plaintiff

B. Radnoff and L. Lung, for the Defendants

Justin Baichoo, for the non-party Morheat Inc.

HEARD: August 24 and October 5, 2012

COSTS ENDORSEMENT

[1] I have reviewed the submissions of the parties and Moreheat Inc. with respect to the issue of costs.

[2] With respect to the dispute concerning costs as between the plaintiff and the defendants, I make no order as to costs. Notwithstanding the fact that the defendants were successful in defending the plaintiff’s contempt motion, I did conclude that it was more likely than not that the defendant, James Shen, took the logbooks. In my view, this conclusion is relevant to the issue of costs and goes directly to the important issue of ensuring that parties in litigation respect and adhere to court orders: Scaffidi v. Scaffidi, 1998 14890 (ON SC), [1998] O.J. 3548, 41 R.F.L. (4th) 166 (Gen. Div.); Bank of Montreal v. Woldegabriel, [2007] O.J. No. 1305, 156 A.C.W.S. (3d) 491 (S.C.J.); Biraben v. Pelland, [2006] O.J. No. 3094, 150 A.C.W.S. (3d) 352 (S.C.J.) and Doucet v. Spielo Manufacturing, 2007 NBQB 37, [2008] N.B.J. No. 27, 164 A.C.W.S. (3d) 82 (N.B.Q.B.).

[3] Since Shen likely did not adhere he ought not to be entitled to an award of costs for the motion. The plaintiff, however, also did not succeed at the motion and as such should not receive costs.

[4] I made no such negative findings against the non-party Morheat Inc. Accordingly, Moreheat Inc. is entitled to its costs. Given the fact that Moreheat Inc. is a non-party, it is my view that it is reasonable to award costs on a substantial indemnity basis. I do, however, find the amount sought by counsel to be excessive given Moreheat Inc.’s limited role in the motion. I award Moreheat Inc. costs, payable by the plaintiff, in the amount of $25,000 plus HST, plus the disbursements of $1,167.74.

[5] The costs are to be paid within 60 days.

T. McEwen J.

Date: February 1, 2013