ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 07-CV-40173 A1
DATE: 2013/10/29
BETWEEN:
GILLES DUBE INVESTMENTS INC.
Plaintiff
– and –
SALAH SHOOMAN, ELI KHALIFE and DIMITRI KHALIFE together operating as FAST LUBE
Defendants
Thomas P. Connolly, for the Plaintiff
Salah Shooman, Self-represented
Eli Khalife, Self-represented
Dimitri Khalife, Self-represented
– and –
CANGO INC.
Third Party
Tamara Farber, for the Third Party, Cango Inc.
HEARD: By written submissions
DECISION ON COSTS
Métivier J.
[1] This motion was brought on June 21, 2013 after a judgment was entered as a result of the acceptance of an offer prior to a 10-day trial scheduled to start on February 4, 2013.
[2] The parties sought finality by way of a judicial determination of costs in the lawsuit including pre-judgment interest and the correction or approval of wording in a Release.
[3] My judgment was released on June 28, 2013.
[4] The Plaintiff, Mr. Dubé, submits that he was successful on that June 2013 motion and accordingly, seeks costs of $9,504.56.
[5] The Third Party, Cango Inc., submits that the success was divided.
[6] Mr. Dubé had sought costs of $56,646.84 while Cango Inc. submitted costs should be $20,000. I awarded costs of $38,000. The Plaintiff, Mr. Dubé, was therefore successful on this point, albeit with a recovery less than what was sought.
[7] Mr. Dubé asked for pre-judgment interest from the outset of the Application in 2007. Cango Inc. submitted the proper date for commencement was the date of service of the Third Party Claim, December 7, 2009 and the proper rate was 0.5%. I agreed with the 2009 date, and Cango Inc. was successful on this point.
[8] The Release was the final area of disagreement. Cango Inc. sought to include a confidentiality provision and a derivative action provision. Mr. Dubé rejected both unilateral additions to the Release. I agreed that the “enhanced” release was inappropriate. The plaintiff, Mr. Dubé was successful on this point as well.
[9] It is clear that Mr. Dubé was more successful. Moreover, Cango Inc.’s position on the Release was unreasonable since neither term had been discussed nor any agreement reached.
[10] Cango Inc. had made a Rule 49 Offer to Settle on June 7, 2013 offering to settle the June 21, 2013 motion for $65,000. The total value of the award to the plaintiff was $68,576.52.
RULE 49 OFFER TO SETTLE
COSTS CONSEQUENCES OF FAILURE TO ACCEPT
Defendant’s Offer
49.10 (2) Where an offer to settle,
(a) is made by a defendant at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the plaintiff,
and the plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer was served and the defendant is entitled to partial indemnity costs from that date, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 49.10 (2); O. Reg. 284/01, s. 11 (2).
[11] The offer was close but was less favourable than the judgment. Most importantly, the offer was predicated on a Release with terms on which I found there had been no agreement.
[12] Accordingly, the offer does not trigger any costs consequences since the recovery was higher than the amount offered.
[13] The parties have each set out the various factors enumerated in Rule 57. In the decision of Smith J. in Heasley v. Labelle, 2013 ONSC 4526 he states the following at para. 3:
… [these] include in addition to success, the amount claimed and recovered, the complexity and importance of the matter and the principle of proportionality, the conduct of any party which unduly lengthened the proceeding, whether any step was improper, vexatious or unnecessary, or taken through negligence mistake or excessive caution, a party’s denial or refusal to admit anything, any offer to settle, the principle of indemnity, scale of costs, hourly rate claimed in relation to the partial indemnity rate set out in the Information to the Profession effective July 1, 2005, the time spent, and the amount that a losing party would reasonably expect to pay.
[14] The amount claimed was $65,000 and the amount recovered was $68,000. The proceeding was not overly complex and the issues while not novel were of significant importance.
[15] The time spent and rates charged I find to be reasonable.
[16] The losing party had sought costs thrown away of $7,773 for an abandoned motion. Accordingly, the amount sought here is within a range which the losing party would reasonably expect to pay.
[17] The successful party here is entitled to its costs.
[18] Given all the circumstances here present, I find the Plaintiff, Mr. Dubé should be entitled to his costs, which I fix at $9,000, all inclusive.
Madam Justice Monique Métivier
Released: October 29, 2013
COURT FILE NO.: 07-CV-40173 A1
DATE: 2013/10/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GILLES DUBE INVESTMENTS INC.
Plaintiff
– and –
SALAH SHOOMAN, ELI KHALIFE and DIMITRI KHALIFE together operating as FAST LUBE
Defendants
– and –
CANGO INC.
Third Party
dECISION ON COSTS
Métivier J.
Released: October 29, 2013