Mannarino’s Creative Foods Inc. v. Pezzaniti, 2015 ONSC 1772

NEWMARKET COURT FILE NO.: CV-11-103772-00

DATE: 20150318

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MANNARINO’S CREATIVE FOODS INC.

Plaintiff

– and –

MARIA PEZZANITI, TONY PEZZANITI and FRANK PEZAANITI

Defendants

Peter B. Cozzi, for the Plaintiff

Charles Baker, for the Defendants

HEARD: by written submissions

REASONS FOR DECISION ON COSTS

DOUGLAS J.

[1] By way of Reasons for Decision on Motion released February 23, 2015 I dismissed the Plaintiff’s motion to remove counsel of record for the Defendants on the basis of conflict of interest. In doing so I applied the principles established by the Supreme Court of Canada in MacDonald Estate v. Martin 1990 Carswell Man. 233 (S.C.C.).

[2] I concluded that some information of a confidential nature was imparted by Ms. Mannarino to Mr. Baker; however, I further concluded that there was no solicitor client relationship between the Plaintiff and Mr. Baker. I concluded that the Plaintiff’s motion was likely a tactical decision calculated to discourage the Defendant’s proposed motion for security for costs and that a genuine concern about a conflict of interest ought to have been pursued by the Plaintiff much earlier in the three years that Mr. Baker has been acting for the Defendants.

[3] Notwithstanding the Plaintiff’s arguments to the contrary, there is no basis to conclude that anyone other than the Defendants have been successful upon this motion. The motion was dismissed and in this context that can only be interpreted as success to the Defendants.

[4] By way of letter dated November 20, 2014 the Defendants offered to settle the motion on the basis of the motion’s dismissal and $1,000 costs paid to the Defendants within 30 days. This offer was not accepted.

[5] The Defendants seek a total of $6,562.05 including disbursements and HST. The Bill of Costs of the Defendants discloses reasonable expenditures of time and reasonable hourly rates. The Plaintiffs calculated substantial indemnity costs of $5,650, which is similar in quantum to that calculated by the Defendants, thus serving to roughly confirm the reasonableness of the amount claimed.

[6] The issue on the motion was important but not particularly complex.

[7] Notwithstanding the arguments of the Plaintiff, I am not persuaded that there is any reason in these circumstances to depart from the general principle that costs follow the event.

[8] There has been no submission by the Plaintiff as to the quantum of costs sought.

[9] In my view the costs proposed by the Defendants are reasonable and appropriate given the Offer to Settle and the Plaintiff’s failure to accept same.

[10] Therefore, costs shall be fixed in the amount of $6,500 inclusive of disbursements and HST, payable by the Plaintiff within 30 days.

DOUGLAS J.

Released: March 18, 2015