ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 07-CV-335466PD3
DATE: 20150714

B E T W E E N :

ZENEX ENTERPRISES LIMITED
Plaintiff

– and –

PIONEER BALLOON CANADA LIMITED, S. ROSSY NC., DOLLARAMA S.E.C., and DOLLARAMA L.P.
Defendants

Michael S. Deverett and Christina Palod
for the Plaintiff

Derek Collins
for the Defendants

HEARD: April 13-17, 2015

AMENDMENT TO JUDGMENT

CHAPNIK J.:

[1] My reasons for judgment were released to the parties in this matter on June 19, 2015. Subsequently, I received written submissions from both counsel regarding the issues of damages, pre-judgment interest and costs.

[2] Regarding damages – at paragraph 62, page 10 of the judgment, I say:

It is agreed between the parties that the 5% commission for that period would be in the sum of $277,684.23 USD or $350,000 in Canadian funds and I assess the plaintiff’s damages in that amount.

[3] I am now satisfied first, that the parties were not ad idem regarding the damage amount; and second, that the proper amount of damages would be the sum of $266,725.08 consistent with the Reasons and exhibit 52 which I accept as accurate.

[4] Pre-judgment interest on that amount from the fall of 2006 to the date of the judgment would be in the sum of $51,273.69.

[5] Regarding the matter of costs, paragraph 68 of the judgment reads:

I am aware that the plaintiff made an offer to settle the action, pursuant to rule 49.10 of the Rules of Civil Procedure, on July 12, 2010 for the amount of $100,000 plus costs. Accordingly, Zenex is entitled to its costs on a partial indemnity scale from the commencement of the action to that date and costs on a substantial indemnity scale after that date.

[6] I also found at paragraph 69 that, “given the volume of material and the factual complexity of the case and taking into account the factors set out in rule 57.01 and the prevailing case law, the amounts claimed are fair, reasonable and within the reasonable expectation of the parties”.

[7] That observation remains. However, at the time and prior to receiving counsel’s written submissions, I was not provided with a detailed outline of the plaintiff’s substantial indemnity costs in each category. I am now advised that from the time the action was commenced in 2007 to the date of the Offer to Settle in July 2010, the parties had exchanged pleadings and affidavits of documents, completed discoveries, answered undertakings and attended a mediation. In my view, it would be improper to allocate only about $16,000 to the three year period before the offer was made and approximately $84,000 thereafter in these circumstances. Surely, the plaintiff has weighted the latter category in order to take advantage of rule 49.10.

[8] Taking this into consideration as well as the usual factors pertaining to the fixing of costs and the plaintiff’s Offer to Settle, I have reached the conclusion that a fair and appropriate assessment of the plaintiff’s costs within the reasonable expectation of the parties would be the sum of $85,000 plus about $7,000 for disbursements or a total of $92,000.

[9] In summary, my judgment in this matter shall be amended to order damages in favour of the plaintiff in the amount of $266,725.08; pre-judgment interest in the sum of $51,273.69; and costs in the all-inclusive sum of $92,000.

CHAPNIK J.

RELEASED: July 14, 2015

COURT FILE NO.: 07-CV-335466PD3
DATE: 20150714

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N :

ZENEX ENTERPRISES LIMITED
Plaintiff

– and –

PIONEER BALLOON CANADA LIMITED, S. ROSSY NC., DOLLARAMA S.E.C., and DOLLARAMA L.P.
Defendants

AMENDMENT TO JUDGMENT

CHAPNIK J.

RELEASED: July 14, 2015