Unicer Foods Ltd. v. Henriques

CITATION: Unicer Foods Ltd. v. Henriques, 2015 ONSC 6207

COURT FILE NO.: CV-09-391820

DATE: 2015-10-01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Unicer Foods Ltd., Plaintiff

AND:

Maria Jose Henriques, Tome Alves Henriques and Maria Da Cunha, Defendants

BEFORE: Pollak J.

COUNSEL: Nicholas C. Tibollo and Lori Marzinotto, for the Plaintiff (check names)

Michael Simaan, for the Defendant Maria Da Cunha

HEARD: March 9, 10, 11, 12, 13, and June 22, 2015

COSTS ENDORSEMENT

[1] I have reviewed and considered the cost submissions of both parties. The Plaintiff submits that full indemnity costs should be awarded on a joint and several basis against all of the Defendants. The Defendants Maria and Tome Henriques did not participate in the trial.

[2] The purpose of the Court requesting that the parties agree on an amount which is reasonable in the circumstances to be awarded to the successful party, on a partial indemnity basis, was for the Court to be provided with the number the Plaintiff believed was reasonable if the Court were to award costs on a partial indemnity basis. The Court did leave it open for the parties to submit that a higher scale of costs was warranted after the release of the Endorsement. Although the Henriques Defendants were not participating in the trial, the Court accepts that the $70,000 amount agreed to between the Plaintiff and the Da Cunha Defendant represents the Plaintiff’s agreement that such costs are “reasonable in the circumstances” for an award of costs on a partial indemnity basis. The Plaintiff, however, submits that it should be awarded costs on a full indemnity basis because of the conduct of all of the Defendants. The issue is therefore the scale of costs to be awarded against the Defendants. I must consider the conduct of the Defendants, including the conduct of the Defendant Ms. Da Cunha and all of the factors, and the factors set out in Rule 49 and Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. I am required to award costs that are reasonable and fair. (Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).)

[3] I agree with the submissions of the Defendant Ms. Da Cunha that the appropriate scale of the cost award to Unicer, should be on a partial indemnity basis. I do not agree with the submissions of the Plaintiff that costs on a full indemnity basis of $217,368.13 should be awarded against the Defendant Da Cunha. Ms. Da Cunha’s conduct does not, in my view, meet the severity required to justify an award of costs on a full indemnity basis.

[4] Ms. Da Cunha now also requests a reduction of the agreed to amount of $70,000 on a partial indemnity basis by $1,000. She submits that the submission of Unicer for a higher scale of costs was unreasonable. I do not think that it was unreasonable for Unicer to make cost submissions regarding the appropriate scale of costs and therefore will not reduce the amount of costs that the parties agree are reasonable on a partial indemnity basis.

[5] I therefore award costs to be paid by all of the Defendants, jointly and severally, to the Plaintiff, in the amount of $70,000. This amount includes all disbursements and applicable taxes.

Pollak J.

Date: October 1, 2015