SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 13-40531

DATE: 2015-08-24

RE: Canadian Imperial Bank of Commerce, Plaintiff

AND:
Toolmetrix Inc., Milan Ugrinov, Larry Stahlbaum and Kimberly Ouellete, Defendants

BEFORE: G. E. Taylor

COUNSEL:
Michael J. Valente, for the Plaintiff

Evan Tingley, for the Defenant, Larry Stahlbaum

HEARD: February 11, 2015

Costs ENDORSEMENT

[1] The plaintiff was granted summary judgment based on a guarantee of the indebtedness of Toolmetrix. The judgment was for $580,993.43 (Cdn.) plus interest and for $50,887.26 (U.S.) plus interest. Written submissions with respect to costs were requested. The plaintiff has delivered written submissions requesting costs but the defendant has not responded. Counsel for the defendant advised in a letter dated August 21, 2015 that he has been unable to obtain instructions to prepare responding submissions and that he has no objection to costs being fixed on the basis of the plaintiff’s submissions alone.

[2] The judgment awarded in favour of the plaintiff was for the amounts claimed in the Statement of Claim. By way of an email dated January 13, 2015, the plaintiff offered to settle the action by the defendant paying the principal amounts claimed in the Statement of Claim, approximately one half the amount owing for interest in the amount of $30,000 and partial indemnity costs of $28,000, all to be paid within 45 days. The email concludes with the following: “Please accept this offer as a formal offer pursuant to the Rules.”

[3] I am satisfied that the plaintiff’s Offer to Settle was in compliance with rule 49.10 of the Rules of Civil Procedure in that it was made in writing at least seven days before the commencement of the hearing, was not withdrawn and did not expire before the commencement of the hearing and was not accepted by the defendant. Because of the offer to significantly reduce the amount owing for interest, I am also satisfied that the plaintiff achieved a result that was more favourable than the terms of the Offer to Settle. Therefore, in accordance with rule 49.10, the plaintiff is entitled to partial indemnity costs to the date of the Offer to Settle and substantial indemnity costs thereafter.

[4] Counsel for the plaintiff suggests that partial indemnity costs of $28,000 be awarded to the date of the Offer to Settle and substantial indemnity costs of $5000 be awarded for the period subsequent to the date of the Offer to Settle. These amounts are based on an actual hourly rate of $525 for counsel with 31 years of experience. I find this hourly rate to be somewhat on the high side considering the relatively straightforward nature of this lawsuit. However, in the absence of submissions to the contrary I am prepared to accede to the suggestion of a total cost award of $33,000, but in all of the circumstances, in my view, it is appropriate that the figure of $33,000 include disbursements and HST.

[5] It is therefore ordered that the defendant Stahlbaum pay to the plaintiff its costs of this action in the amount of $33,000 including disbursements and HST, forthwith.

G.E. Taylor, J.

Date: August 24, 2015