SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-472914

DATE: 2014-04-02

RE: HARJIT SINGH SIDHU, DUSTIN SINGH SIDHU and 22385 ONTARIO INC., Plaintiffs

AND:

BARBURRITO RESTAURANTS INC., Defendant

BEFORE: The Honourable Mr. Justice Stephen E. Firestone

COUNSEL:
Evan Shapiro & Ray Thapar, for the Plaintiffs

Morris Cooper, for the Defendant

COSTS ENDORSEMENT

[1] By way of written reasons released December 19, 2013 I dismissed the defendant’s motion for an order removing Simmons Da Silva & Sinton LLP (“Simmons”) as solicitors of record for the plaintiffs without prejudice to bring the same motion following documentary and oral discovery.

[2] I indicated that if the parties could not agree on costs, written submissions along with a costs outline could be filed with the court for my consideration.

[3] Costs are within the discretion of the Court: Courts of Justice Act, s.131 (1). The court has a broad discretion when determining the issue of costs. Rule 57.01 (1) sets out the factors I may consider in determining costs.

[4] I have reviewed the written submissions of counsel. I’ve also considered the factors enumerated under rule 57 as well as the principle of proportionality to the circumstances here: Rule 1.04 (1).

[5] A successful party is entitled to costs unless there are very good reasons not to award such costs: Schreiber v. Mulroney, 2007 31754 (ON SC), [2007] O.J. No. 3191 (Sup. Ct.) at para 2. The defendant’s motion was dismissed. The plaintiffs were therefore the successful party on this motion.

[6] In fixing costs I am to consider any other matter relevant to the question of costs: Rule 57.01 (1)(i). One such relevant matter is the fact that the motion was dismissed without prejudice to bring the same motion following documentary and oral discovery.

[7] Another relevant factor is the defendant’s argument that notwithstanding my finding that the motion was premature, if they failed to bring this motion when they did, the plaintiffs would have likely argued in opposition to the motion at a later date, that the defendant waited too long to bring it. In my view the defendant’s motion was therefore not improper, vexatious or unnecessary given the circumstances of this case.

[8] I have taken into account the principles set forth by the Court of Appeal in Boucher v. Public Accountants Counsel for Ontario, 2004 14579 (ON CA), 2004 CanLll 14579 (ONCA) 71 O.R. (3d) 291 (C.A.), specifically that the overall objective of fixing costs to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.

[9] I therefore order that the defendant pay to the plaintiffs the all-inclusive sum of $2,000.00 within 30 days.

Firestone J.

Date: April 2, 2014