The Catalyst Capital Group Inc. v. Moyse, 2015 ONSC 1146

Court File and Parties

CITATION: The Catalyst Capital Group Inc. v. Moyse, 2015 ONSC 1146

COURT FILE NO.: CV-14-507120

DATE: 20150220

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE CATALYST CAPITAL GROUP INC.

Plaintiff

AND:

BRANDON MOYSE and WEST FACE CAPITAL INC.

Defendants

BEFORE: Mr. Justice Lederer

COUNSEL: Rocco DiPucchio & Andrew Winton, for the Plaintiff

Jeff C. Hopkins & Justin Tetreault, for the Defendant, Brandon Moyse

Jeff Mitchell & Matthew J.G. Curtis, for the Defendant, West Face Capital Inc.

COSTS ENDORSEMENT

[1] This was a motion for an interlocutory injunction. The plaintiff succeeded. It seeks costs on a substantial indemnity scale, in the amount of $155,295.40. The two defendants point out that, as an interlocutory order, the final disposition of the issues is not known. They say that there is no basis for costs to be awarded at an elevated scale and that they should, in any event, be in the cause.

[2] The rationale for the claim for the higher scale is the determination that the actions of the defendants detracted from their ability to succeed on the motion. The approach was such that equity did not balance in their favour. Be that as it may, I am not prepared to find that the conduct of these parties was so egregious that it should be the cause of an increased award of costs.

[3] It is also fair to observe that the substance of the decision is that there is a serious issue to be tried. It may be that, in the end, the defendants will be successful in demonstrating that the non-competition clause is not enforceable and that, in any event, whatever occurred there was no damage to Catalyst. In such circumstances, it may even be that the defendants will seek to rely on the undertaking as to damages made on behalf of Catalyst in support of the granting of the injunction.

[4] In such circumstances, it would not be appropriate for Catalyst to be paid for the costs of an injunction, where the cause for it was not, in the end, validated. On the other hand, these costs were added, if not caused, by the actions of the defendants. Certainly, some of them could have been avoided.

[5] I award costs to the plaintiff in the cause in the amount of $75,000.

LEDERER J.

Date: 20150220