ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-58476
DATE: 2014-06-10
BETWEEN:
SYDNEY R. STONE & CO. LIMITED
Plaintiff/ Defendant by Counterclaim
– and –
LENA PRINTING INC. and ROLAND ABI-LAMAA also known as ROLAND BELLAMA
Defendant/Plaintiff by Counterclaim
Walter Kravchuk, for the Plaintiff/Defendant by Counterclaim
Kaushik Parameswaran, for the Defendant/Plaintiff by Counterclaim
HEARD: In writing
COSTS DECISION
T.D.RAY, J
[1] Following a trial, I dismissed the plaintiff’s claim as well as the defendants’ counterclaim with the exception that I ordered that the plaintiff provide the codes for the machine (2014 ONSC 2722). I invited submissions concerning costs which I have received. This was a simplified claim.
[2] The defendants’ position is that they are entitled to their costs on a partial indemnity or substantial indemnity basis on the ground that they were successful in resisting the plaintiff’s claim, and that offers made by the defendants were closer to the final result than the offers of the plaintiff.
[3] The plaintiff’s position is that it is entitled to its costs on the ground that the defendants’ counterclaim unduly delayed the proceeding and on the ground of its unwillingness to complete a pretrial settlement agreement.
[4] I do not consider any of the offers to settle to be relevant to the award of costs. Neither party bettered my decision in their offer. While I have no particular criticism of the lawyers in the way the proceeding was conducted, it is pretty clear that both parties behaved badly. I take it that those were business decisions they made. Otherwise there would probably not have been the need for this litigation. If there had been a pre-action agreement, then the parties could have taken proceedings to enforce it. Apparently they did not.
[5] Except for my order concerning the codes, neither party was successful. An order for no costs might have been appropriate but I cannot ignore the partial success of the defendant. Without the codes, the defendants cannot satisfactorily maintain the equipment. The codes are therefore critical to the operation of the machines by the defendants.
[6] Having regard to the importance of the order that the codes be handed over, and the principle of proportionality, an order of costs in favour of the defendants is warranted. The defendants’ costs are fixed at $2,000.00.
Honourable Justice Timothy Ray
Released: June 10, 2014
COURT FILE NO.: 13-58476
DATE: 2014-06-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SYDNEY R. STONE & CO. LIMITED
Plaintiff/ Defendant by Counterclaim
– and –
LENA PRINTING INC. and ROLAND ABI-LAMAA also known as ROLAND BELLAMA
Defendant/Plaintiff by Counterclaim
costs decision
Honourable Justice Timothy Ray
Released: June 10, 2014