SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-13-115183

DATE: 20131108

RE: Daniel Kotzer, Plaintiff

-and-

Oran Ackerman, 2096049 Ontario Limited, and 2281823 Ontario Limited, Defendants

BEFORE: The Honourable Mr. Justice M.L. Edwards

COUNSEL:
Mark S. Hayes, for the Plaintiff

Scott Rosen, for the Defendants

HEARD: Written Submissions – July 24, 2013

Costs ENDORSEMENT

[1] The defendant was entirely successful in resisting the plaintiff’s motion brought under Rule 45.02 of the Rules of Civil Procedure. The plaintiff’s motion was brought, effectively, without notice and required the defendant to respond in an extremely timely fashion. The effect of the plaintiff’s motion would have been in the nature of a Mareva-type injunction.

[2] The defendant suggests that given the tactics employed by the plaintiff in bringing this matter before the court on such short notice, that it should be entitled to receive substantial indemnity costs. Defence counsel is seeking fees on a substantial indemnity basis in the amount of approximately $8,400, plus HST, plus disbursements of $126.84. On a partial indemnity basis, the defendant seeks costs in the amount of $6,545, plus HST, plus disbursements.

[3] Counsel for the plaintiff characterizes the motion before the court as a relatively simple matter and that the plaintiff should be entitled to costs fixed in the amount of $2,000, inclusive of fees, disbursements, and taxes.

[4] This matter was not a relatively simple motion. It had a degree of complexity that takes it far outside the characterization of a simple motion. As well, the defendant was put into a position of having to respond to the motion on extremely short notice. There was nothing in the approach taken by the plaintiff which would warrant a costs award on a substantial indemnity basis. Looked at from the perspective of what the losing party could reasonably have anticipated paying; given the circumstances that the defendant was put into, I am of the view that the appropriate costs award on a partial indemnity basis should be $5,000, plus HST, plus the disbursements claimed of $126.84. These costs are payable forthwith.

Justice M.L. Edwards

Released: November 8, 2013