Court File and Parties

COURT FILE NO.: 15-CV-522578

DATE: 20151019

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Joseph Buaron, Plaintiff

AND:

AcuityAds Inc., Defendant

BEFORE: Hood J.

COUNSEL:
Daniel A. Lublin, for the Plaintiff

Ellen V. Swan, for the Defendant

HEARD: September 1, 2015

COSTS ENDORSEMENT

[1] I have received the costs submissions of the plaintiff and the defendant.

[2] The plaintiff was successful on the principal issue – whether the employment agreement was enforceable. The defendant was successful on the issue of inducement, which only arose following the plaintiff’s success on the issue of enforceability, and the issue of punitive damages which was an independent claim by the plaintiff.

[3] Because of this, the defendant argues that each side should bear its own costs. While I am not prepared to go that far, the divided success is a factor to consider in my overall assessment of the costs. Being successful on the motion, the plaintiff is presumptively entitled to costs. The plaintiff seeks $16,505.00 inclusive of HST and disbursements on a partial indemnity basis. This is without any reduction for divided success.

[4] The fixing of costs is discretionary under s. 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01. These include the principle of indemnity for the successful party, the reasonable expectations of the unsuccessful party, the amount claimed and recovered, and the complexity and importance of the issues. Overall, I am required to consider what is fair and reasonable for the unsuccessful party to pay rather than the actual costs incurred by the successful party, although that is a factor.

[5] I find the amount being claimed by the plaintiff to be somewhat high, but I am mindful that this was an all or nothing matter in light of the issue of the employment agreement. The inducement issue was minor in the circumstances. However, the punitive damage claim was not, and a good portion of the argument dealt with this issue.

[6] In all of the circumstances, I find costs for the action, inclusive of the motion, inclusive of HST and disbursements, to be $10,000.00, payable by the defendant to the plaintiff within thirty (30) days of today’s date.

Hood J.

Date: October 19, 2015