SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-12-01011-SR
DATE: 20131126

RE: Scottsdale Holdings Inc. (Plaintiff)

v.

Albert Ayoub and By Kennedy Flooring Inc. and Libanco By Kennedy Flooring Inc. (Defendants)

v.

Erin Mills Soccer Club Inc. (Third Party/Plaintiff by Third Party Counterclaim)

v.

By Kennedy Flooring Inc. and Libanco By Kennedy Flooring Inc. (Defendants by Third Party Counterclaim)

BEFORE: D.L. Edwards J.

COUNSEL:
Ethan M. Rogers, for the Plaintiff

Alex Flesias, for the Defendants

Geza Banfai and Mark St. Cyr, for Erin Mills Soccer Club Inc.

HEARD: October 17, 2013

E N D O R S E M E N T

[1] On October 17, 2013, I granted the Plaintiff’s motion and ordered that the Defendants produce all bank statements relevant to the receipt and disbursement of trust funds. I further ordered that written cost submissions be provided with respect to the motion and the attendances on September 13, 2013 and October 17, 2013. I have reviewed the submissions; this is my cost endorsement.

[2] The Plaintiff provided a Cost Outline of $7,838.40 for fees and $1,337.41 for disbursements. It seeks costs of 70% of the fees and 100% of the disbursements.

[3] The Plaintiff asserts that the Defendants’ conduct was unreasonable; that they did not consent to simple matters such as the change of the corporate name of the Plaintiff; and that they unreasonably withheld the bank statements. The bank statements were first requested in mid-October 2012. The Plaintiff suggested dates for a motion for August and September 2013, none of which was satisfactory to the Defendants’ counsel. The earliest date that the Defendants’ counsel was available was late October or November. As a result, the Plaintiff scheduled the motion for September 13, 2013.

[4] The Plaintiff, by way of a letter dated September 16, 2013, proposed a settlement of the matter on the basis that the Defendants provide the bank statements and pay costs of $4,500. The Defendants rejected this proposal and required the October 17, 2013 motion to proceed.

[5] Counsel for the Defendants direct me to Rule 57.01 that sets out the factors that I must consider in exercising my discretion regarding costs. They submit that the costs sought are grossly disproportionate to the complexity of the motion, the amount of the claim and the reasonable expectations of the Defendants.

[6] The Defendants submit that the scheduling of the September 13, 2013 motion led to unnecessary delay and costs as this date was one that the Plaintiff knew that the Defendants’ counsel was not available.

[7] The amount of the claim is $34,406.66 and the Defendants assert that the cost award should take into consideration the principle of proportionality, fairness and reasonable expectations of the parties.

[8] I am satisfied that the conduct of the Defendants was unreasonable and forced the Plaintiff to bring the motion. I am also satisfied that the scheduling of the motion for September 13, 2013 was a reasonable step by the Plaintiff.

[9] I find that the hourly rate of the Plaintiff’s counsel is appropriate. The time spent is not excessive and was necessary to move this matter forward.

[10] The Plaintiff was completely successful on the motion and is entitled to its costs.

[11] Based upon the forgoing, I order that the Defendants pay costs to the Plaintiff in the sum of $6,500.00 fixed.

D.L. Edwards J.

DATE: November 26, 2013

COURT FILE NO.: CV-12-01011-SR
DATE: 20131126

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Scottsdale Holdings Inc.
(Plaintiff)

v.

Albert Ayoub and By Kennedy Flooring Inc. and Libanco By Kennedy Flooring Inc. (Defendants)

v.

Erin Mills Soccer Club Inc.
(Third Party/Plaintiff by Third
Party Counterclaim)

v.

By Kennedy Flooring Inc. and Libanco By Kennedy Flooring Inc. (Defendants by Third Party Counterclaim)

BEFORE: D.L. Edwards J.

COUNSEL:
Ethan M. Rogers, for the Plaintiff

Alex Flesias, for the Defendants

Geza Banfai and Mark St. Cyr,
for Erin Mills Soccer Club Inc.

ENDORSEMENT

D.L. Edwards J.

DATE: November 26, 2013