CITATION: Ontario Psychological Association v. Mardonet, 2015 ONSC 2038
COURT FILE NO.: CV-14-508239
DATE: 20150330
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ONTARIO PSYCHOLOGICAL ASSOCIATION
Plaintiff
– and –
CHARLOTTE (CARLA) MARDONET, SARAH ESAAFI, GABRIAL BENSUSAN, 2181420 ONTARIO INC., BDO CANADA LLP, VERN E. PENNER AND DR. JOHN SERVICE
Defendants
David F. O.'Connor and Jason J. Tan for the Plaintiff
Paul D. Stern for the Defendant Charlotte (Carla) Mardonet
Peter-Paul E. Du Vernet for the Defendants Gabrial Bensusan and 2181420 Ontario Inc.
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
A. INTRODUCTION AND OVERVIEW
[1] With a pending motion to continue an interim Mareva injunction, the Defendants Charlotte (Carla) Mardonet, Gabrial Bensusan, and 2181420 Ontario Inc., brought motions for orders to keep confidential or sealed the affidavits they respectively intended to deliver for the motion and the transcripts of the subsequent cross-examinations. Given recent case law, the Defendants were uncertain whether their voluntary affidavits were protected by the privilege against self-incrimination.
[2] The Plaintiff, the Ontario Psychological Association opposed the motion and by cross-motion moved for a Confidentiality Order for its motion material because of privacy concerns.
[3] I dismissed both motions. See Ontario Psychological Association v. Mardonet, 2015 ONSC 1286. I invited the parties to make costs submissions but indicated in my Reasons for Decision that my view was that there should be no order as to costs or that the costs should be in the cause of the Mareva injunction motion.
[4] The Ontario Psychological Association seeks costs of $15,000, all inclusive, for the Defendants' motions.
[5] Mr. Bensusan, 2181420 Ontario Inc. and Ms. Mardonet, respectively submit that there should no order as to costs mainly because of the novelty of the legal issues involved.
[6] The Defendants also ask for costs for their costs submissions.
[7] Having read the submissions of the parties, I am convinced that the appropriate order to make in this case is that the costs should be treated as costs in the cause of the Mareva injunction motion fixed at $5,000, all inclusive. In other words, the successful party on the Mareva injunction should recover the costs of the motion and the cross-motion if the court awards costs for the Mareva injunction motion.
[8] I think this outcome is fair and within the reasonable expectations of the parties.
[9] Both motions arose out of the exigencies of the Mareva injunction motion and although both parties' motions were technically dismissed, the parties were not unsuccessful in the sense that the substantive rationale of the dismissals was that the motions were essentially unnecessary. Both parties were nevertheless prudent and reasonable in bringing their respective motions. These exigencies make costs of $5,000, all inclusive, in the cause the appropriate order.
[10] I am fortified in this conclusion by the fact that there were some uncertainties in the state of the case law, and, thus, there is something to the submissions that the novelties of the issues in the immediate case might justify no order as to costs. However, given the context of an opposed Mareva injunction, the more appropriate order is to order costs in the cause rather than make no order as to costs, which might just cause difficulty later in quantifying the costs for the Mareva injunction.
[11] As for the claim for costs for the costs submissions, I grant Ms. Mardonet $500 and Mr. Bensusan and his company $500 in costs payable by the Plaintiff in any event of the cause of the Mareva injunction.
[12] Order accordingly.
Perell, J.
Released: March 30, 2015
CITATION: Ontario Psychological Association v. Mardonet, 2015 ONSC 2038
COURT FILE NO.: CV-14-508239
DATE: 20150330
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ONTARIO PSYCHOLOGICAL ASSOCIATION
Plaintiff
– and –
CHARLOTTE (CARLA) MARDONET, SARAH ESAAFI, GABRIAL BENSUSAN, 2181420 ONTARIO INC., BDO CANADA LLP, VERN E. PENNER AND DR. JOHN SERVICE
Defendants
REASONS FOR DECISION - COSTS
PERELL J.
Released: March 30 , 2015