SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-466869

DATE: 20140318

RE: 8150184 Canada Corporation, Plaintiff

AND:

The Rotisseries Mom’s Express Limited, Ashraf Ahmad and Pierre McLean, Defendants

BEFORE: Mew J

COUNSEL: Keith Landy and David Fogel, for the Plaintiff

Paul Fauteux, for the Defendants, The Rotisseries Mom’s Express Limited and Pierre McLean

ENDORSEMENT ON COSTS AND PRE-JUDGMENT INTEREST

[1] This endorsement on costs and interest arises from a Rule 51.06(2) motion argued on 3 February (reasons for decision released on 6 February 2014) and from the contested request heard the same day which resulted in the adjournment of the trial of this action.

[2] The plaintiff was successful on its motion, obtaining partial judgment for $152,314.44.

[3] Settlement correspondence between the parties prior to the hearing of the motion culminated in a Rule 49 offer by the plaintiff to settle the action in its entirety, either by way of a single lump sum payment, or, alternatively, by way of a higher amount, but with payment by installments. There was also a counter-offer from the defendants.

[4] The motion did not, however, resolve all issues between the parties. Accordingly, the overall measure of success on the part of the plaintiff cannot yet be gauged.

[5] But for the adjournment request, the case would have proceeded to trial immediately following the argument of the motion. However, the then lawyer for the defendants was given leave to get off the record and the adjournment request was granted to enable the defendants to retain new lawyers, which they have now done.

[6] In these circumstances two sets of costs fall be considered at this time:

(a) costs of the Rule 51.06(2) motion; and

(b) costs arising from the adjournment of the trial.

[7] Until a trial of the outstanding issues has taken place – and, hence, the overall success achieved by the plaintiff has been determined – it would seem to me to be premature to assess the costs consequences, if any, of the offers to settle.

[8] There were no offers to settle in respect of the motion although, in relation to the adjournment of the trial, the plaintiff warned the defendants that it would seek the wasted costs of preparing for a trial that did not proceed as scheduled.

[9] The plaintiff should have its costs of the motion and for the adjournment of the trial on a partial indemnity scale.

[10] In determining an appropriate amount for costs of the motion and the trial adjournment, I have taken into account the plaintiff’s bill of costs as well as the submissions made by the plaintiff and by the lawyer representing the defendants, The Rotisseries Mom’s Express Limited and Pierre McLean. I have focused, in particular, upon time expended in respect of the request to admit, trial preparation and the preparation of costs submissions as well as the attendance in court on 3 February 2014.

[11] Costs for the Rule 51.06(2) motion are fixed at $2,500.00, inclusive of HST and disbursements.

[12] With respect to costs of the adjourned trial, costs of $5,000.00 inclusive of HST and disbursements are awarded.

[13] The total award of costs awarded at this time, and payable by the defendants to the plaintiff forthwith, is therefore $7,500.00.

[14] Having regard to the application of section 6 of the Arthur Wishart Act (Franchise Disclosure), pre-judgment interest should run from 14 December 2012 at a rate of 3%. The amount of interest so calculated is $5,245.46.

Mew J.

Date: 18 March 2014