ONTARIO – SUPERIOR COURT OF JUSTICE

COUNSEL: Alexandra Peterson and Jeffrey C. Silver for the plaintiff
David A. Decker for the defendants

SUPPLEMENTARY ENDORSEMENT - COSTS

Master R. A. Muir -

[1]. This costs endorsement arises from a motion brought by the plaintiff for an order requiring the defendants to produce various documents and for an order pursuant to Rule 32.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, permitting an inspection of the defendants’ property.

[2]. The motion was heard on June 5, 2015. On June 8, 2015 I released my endorsement. I declined to order any of the further production requested by the plaintiff. I did grant the relief requested with respect to the inspection of the defendants’ property, but only in part.

[3]. I also requested that the parties provide the court with written costs submissions. I have now received and considered those submissions.

[4]. The plaintiff takes the position that it was the most successful party on this motion. It asks for partial indemnity costs of $25,000.00. The defendants disagree. They argue that they were the most successful parties on this motion and ask for partial indemnity costs of $10,000.00. In my view, neither side was significantly more successful than the other. There should be no order for costs.

[5]. The plaintiff was successful in obtaining an order for the inspection of the property. However, the plaintiff asked for an inspection by three potential expert witnesses. It was only successful in obtaining an inspection by two of those experts. I also note that the defendants have always been willing to allow an inspection by a real estate appraiser, on certain terms.

[6]. The plaintiff was not successful with respect to its request for additional production.

[7]. The defendants successfully resisted an order for an inspection by an architect. They were not successful in their opposition to an inspection by an interior design expert. It is my view, that the plaintiff was generally successful with respect to the conditions to be placed on the inspection. Several of the defendants’ proposed conditions were quite simply unreasonable.

[8]. Finally, I am not prepared to give much weight to the plaintiff’s offers to settle. The offers to settle included a term that inspections be carried out by experts including an architect and possibly an intellectual property lawyer. The offers also included a term that the defendants produce certain AutoCAD drawings and other documents which I ultimately determined should not be produced. In my view, the result obtained by the plaintiff on this motion was not as favourable as the terms of its several offers to settle.

[9]. For these reasons, and in view of the divided success on this motion, I have concluded that it is fair and reasonable that there be no order for the costs of this motion.

July 10, 2015

Master R. A. Muir