COURT FILE NO.: CV-12-470422
DATE: 20140711
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ZACOTEX FASHION INC., Applicant
AND:
2230334 ONTARIO INC., Respondent
BEFORE: Mr. Justice Firestone
COUNSEL:
C. Bowman, for the Applicant
D. Bath, for the Respondent
HEARD: Written Submissions
costs ENDORSEMENT
[1] On March 27, 2014 I heard the Applicant’s application for judgment regarding the Respondent’s distraint of the Applicant’s goods.
[2] By way of oral reasons delivered that day I ordered as follows:
That this application be converted into an action, the Applicant to be the Plaintiff and the Respondent is to be the Defendant and that this action be tried together with action 13-CV-490866.
That the Applicant serve its Statement of Claim within 15 days and the Respondent serve its Statement of Defense within 10 days thereafter.
That all cross-examinations to date shall be deemed to constitute Examinations for Discovery in both actions.
That the stay in the Respondent’s action in court file number CV-13-480866 be lifted.
[3] In my reasons I indicated that this application should be converted to an action with terms as indicated above, given that there would likely be material facts in dispute before the court regarding entitlement to and assessment of general and special damages.
[4] In addition, there are common issues of fact and law between the application and action No. CV-490866.
[5] I have reviewed and considered the costs submissions filed by the parties.
[6] 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 the Court may consider when determining costs.
[7] The overall objective of fixing costs is 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: Boucher v. Public Accountants Counsel for Ontario, 2004 14579 (Ont. C.A.).
[8] This application which was converted into an action has not been heard on its merits. The Respondent argued that this action should be converted into an action to be heard with the companion action indicated above as it relates to the same set of transactions, the same property missing parties.
[9] This was opposed by the Applicant.
[10] There is no evidence of bad faith on the part of the Applicant as the Respondent contends.
[11] Given the circumstances of this case the position taken before me by the Applicant was not unreasonable.
[12] I am cognizant of the Applicant’s position that a cost award at this stage would cause a financial hardship sufficient to deter it from continuing with the litigation.
[13] I have reviewed the Respondents bill of costs. That bill of costs includes work done in this entire action to date. The bill is not confined to the costs of this motion. As indicated there has been no final determination in this action and therefore it cannot be said the Respondent has been the successful party.
[14] The Respondent has only been successful in its request to have this Application converted into an action.
[15] A successful party is entitled to costs in the absence of a very good reason(s) not to award them: Schreiber v. Mulroney, 2007 31754 (ON SC), [2007] O.J. No. 3191 (Sup. Ct.) at para.2.
[16] I have carefully considered the submissions of counsel as well as the relevant legal principles. Based on same I order that the Applicant pay to the Respondent the costs of the matter heard before me in the sum of $1,900.00 within 30 days.
[17] The Respondent is at liberty to seek the costs of this action, if successful, following the final determination on the merits.
Firestone J.
Date: July 11, 2014