CITATION: SUPER A HOTELS INVESTMENT AND MANAGEMENT GROUP (CANADA) INC. v. 1205723 ONTARIO INC., 2015 ONSC 5189 COURT FILE NO.: CV-14-516943
MOTIONS HEARD: JUNE 18, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Super A Hotels Investment and Management Group (Canada) Inc.
v.
1205723 Ontario Inc.
BEFORE: MASTER R.A. MUIR
COUNSEL: Gregory M. Sidlofsky for the plaintiff Arnold H. Zweig for the defendant
SUPPLEMENTARY REASONS FOR DECISION - COSTS
[1] I heard two motions in this action on June 18, 2015. The first was brought by the plaintiff and sought an order pursuant to Rule 45.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules"). The plaintiff requested that certain specific funds held by the defendant be paid into court pending the outcome of this proceeding. The second motion was brought by the defendant and sought an order requiring the plaintiff to post security for costs pursuant to Rule 56.01(1).
[2] I released my reasons for decision on July 7, 2015. I granted the relief sought by the plaintiff, but only with respect to certain funds. I also granted the relief sought by the defendant but for an amount of security less than the defendants were requesting.
[3] I also requested written costs submissions. I have now received and considered those submissions.
[4] The plaintiff takes the position that it has been largely successful on these motions and requests its partial indemnity costs in the amount of $30,000.00 plus HST. The defendant argues that success has been divided and there should be no order for costs. The defendant also requests that a portion of the costs incurred be reserved to the trial judge as some of the work involved in theses motions will be useful at discovery and trial.
[5] I agree with the defendant in part. In my view, success has been divided. I am unable to conclude that one party was substantially more successful than the other. The plaintiff was successful in obtaining a preservation order but not in respect of all of the amounts it was seeking. The defendant was successful on its security for costs motion but only for a reduced amount. Both motions were argued together. The cross-examinations applied to both motions. In my view, it is fair and reasonable that there be no order for the costs of these motions.
[6] However, I am not prepared to reserve any of the costs to the trial judge as requested by the defendant. It is true that some of the work undertaken in connection with these motions will be useful at discovery and trial. Costs going forward should be reduced to some extent. However, the same can be said of many interlocutory motions, especially any motion that deals with the merits of an action. Rule 57.03 establishes a clear preference. The costs of a contested motion should be determined at the time of the hearing of the motion and not deferred to the trial judge. This practice promotes an important policy objective. Parties who choose to bring or oppose an interlocutory motion do so with the full knowledge that they may face immediate cost consequences if unsuccessful. I see nothing exceptional about these motions that would justify a departure from that practice.
[7] I therefore order that there be no order for the costs of these motions.
August 18, 2015
Master R.A. Muir