SUPERIOR COURT OF JUSTICE – ONTARIO

Court File No.: CV-13-2729-SR
Date: 2014-07-25

Re: BeneFACT Consulting Group Inc. v. Nanotek Computers Corp.

Before: Lemon, J.

Counsel:
Sabrina Hussain, for the Defendant
Ryan Zener, for the Plaintiff

COSTS ENDORSEMENT

[1] On June 9, 2014, I granted Nanoteck’s motion to set aside a default judgment and allowed it to file a statement of defence.

[2] I have now received costs submissions from both parties. Nanoteck, who was successful on the motion, seeks costs of $5,172. In contrast, BeneFACT, who has had costs thrown away by what BeneFACT sees as the intentional acts of Nanoteck, seeks costs of $12,710.61 on a substantial indemnity basis or $9,303.66 on a partial indemnity basis.

[3] From my review of the Bills of Costs, both counsel are reasonable in the time spent and their hourly rates. The difference between them is that BeneFACT seeks costs for not only this motion but also the default hearing when the statement of defence was not filed.

[4] Nanoteck has been successful on its motion and is therefore presumed to be entitled to its costs. Neither side provided offers to settle but this is an issue that was unlikely to be dealt with on a compromised basis. I do not fault BeneFACT for endeavouring to retain its default judgment, especially in light of its belief of the credibility of Nanoteck’s representative.

[5] In its submissions, BeneFACT seeks to reargue the motion. I have already found (albeit reluctantly) that Nanoteck had a valid reason for its failure to respond to the statement of claim. Given that finding, Nanoteck cannot be required to pay costs of a step of which it had no knowledge.

[6] Taking all of the factors into consideration, I award costs to Nanoteck fixed in the amount of $5,000 to be payable by BeneFACT if Nanoteck is successful at trial.

Lemon, J.

DATE: July 25, 2014

COURT FILE NO.: CV-13-2729-SR

DATE: 2014-07-25

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: BeneFACT Consulting Group Inc. v. Nanotek Computers Corp.

BEFORE: Lemon, J

COUNSEL: Sabrina Hussain, for the Defendant
Ryan Zener, for the Plaintiff

ENDORSEMENT

Lemon, J.

DATE: July 25, 2014