Court File and Parties

COURT FILE NO.: CV-12-465607

DATE: 20131112

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2130679 Ontario Inc., William B. Watters, Linda J. Watters, Sarah E. Barber, Matthew B. Watters, David W.B. Watters and Michael B. Watters, Plaintiffs

AND:

The Cora Franchise Group Inc., Cora Tsouflidou, Nicholas Tsouflidis, Yvan Coupal and David Polny, Defendants

BEFORE: R. F. Goldstein J.

COUNSEL:
Javad Heydary and Jeffrey Landmann, for the Plaintiffs

Derek Ronde and Jonathan Wansbrough, for the Defendants (Moving Parties)

Endorsement

[1] The Defendants The Cora Franchise Group Inc. and individual plaintiffs brought a motion to strike pursuant to Rule 21 of the Rules of Civil Procedure. I granted the motion in part: See: 2130679 Ontario Inc. v. The Cora Franchise Group Inc., 2013 ONSC 3099.

[2] The Defendants submit that they are entitled to costs on a substantial indemnity basis given that they achieved most of what they sought on the motion. The Defendants also submit that the Plaintiffs could have avoided much of the costs on the motion if they had not waited until the last minute to agree to amend the most egregious portions of the statement of claim. They claim $11,481.33 in partial indemnity costs inclusive of disbursements and GST.

[3] The Plaintiffs submit that costs should be in the cause, given the mixed success on the motion: Astley v. Verdun, 2007 23907 (ON SC), 2007 CanLII23907 (Ont. S.C.). The Plaintiffs also argue that the costs sought are excessive.

[4] Costs are within the discretion of the Court: Courts of Justice Act, s. 131(1); Rule 57.01(1) of the Rules of Civil Procedure. The Court must fix an amount that is fair and reasonable, taking into account the reasonable expectation of the parties: Boucher v. Public Accountants Council for Ontario, [2004] O.J. No. 2634 (C.A.), 71 O.R. (3d) 291, 2004 14579 (C.A.).

[5] It is frequently the case that success is mixed on Rule 21 motion, since many pleadings are deficient but can be amended with agreement. That is what happened in this case. Nonetheless, the Defendants achieved a substantial amount of success, in that entire causes of action were struck.

[6] In different litigation involving some of the same parties and similar issues, my colleague Hainey J. awarded partial indemnity costs to the Defendants despite mixed success and the novelty of the issues: [2012] O.J. No. 962 (Sup.Ct.).

[7] I agree that under the circumstances here the Defendants are entitled to their costs on a partial indemnity basis, but with a small discount to reflect the fact that they were not entirely successful. In my view, an award of $8000 inclusive of fees, disbursements, and HST is reasonable, payable forthwith.

Goldstein J.

Date: November 12, 2013