CITATION: Andrejs Management Inc. v. Bourdignon et al, 2015 ONSC 7452
COURT FILE NO.: CV-14-512272
DATE: 20151130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDREJS MANAGEMENT INC.
Plaintiff
– and –
TIM BOURDIGNON, CT QUALITY PROPERTY MANAGEMENT INC., MICHELLE McVICAR and COSTA KALAMARIS
Defendants
Jerry Herszkopf, for the Plaintiff
Patrick Copeland, for the Defendant
s.a.Q. akhtar j.
[1] The plaintiff, a condominium property management company, originally brought a motion for injunctive relief seeking to restrain the defendants, a rival company, from soliciting its clients, employees or the employees of any of its clients. I dismissed that motion.
[2] The defendants now seek costs in the amount of $15,082.12 on a partial indemnity basis as a result of being successful on the motion. They take the position that the motion was unnecessary and motivated by the desire to obtain evidence of their misconduct through cross-examinations.
[3] The plaintiff denies that position and argues that costs should be payable in the cause or, alternatively, that costs should be fixed in the amount of $7,500 all inclusive. The plaintiff contends that the defendants added to the costs of the motion by incorrectly arguing they were not bound by the non-solicitation clause of the employment contracts that were the subject of controversy. The plaintiff submits that the defendants should have conceded this point and contested the motion solely on the basis that they had not actually solicited clients in the manner alleged by the plaintiff.
[4] I decline the plaintiff’s request to reserve costs to the trial judge in this matter. The presumption is that costs of a motion shall be paid forthwith: Rule 57.03 of the Rules. This principle is even more pertinent in the context of interlocutory injunctions: Cana International Distributing v. Standard Innovation Corp., 2011 ONSC 752, at para. 7. I see no reason to depart from that practice in this case. Cases of injunctive relief seeking to bar opposing sides from continuing what might otherwise be there normal day-to-day activity should always be subjected to a costs order following the motion. Parties should not be able to seek such influential relief without considering the spectre of a costs order in the event that they are unsuccessful.
[5] Moreover, I reject the argument that, because the defendants did not argue the case in a fashion that the plaintiff thinks was appropriate, they should be penalised. The plaintiff’s motion sought a result that would have significantly impeded the defendants’ ability to conduct their business. They were free to respond to it in the manner in which they chose, and which, in the circumstances of this case was not unreasonable.
[6] The plaintiff also initially took the position that it had formally offered to settle the claim, pursuant to Rule 49.02 of the Rules of Civil Procedure, R.R.O. 1990, 194. On 3 June 2015, the plaintiff sent an email offering “to consent to am [sic] immediate dismissal of their claim on a without cost basis.” It later transpired, however, that the plaintiff withdrew the offer to immediately prior to the hearing, a fact conceded by the plaintiff’s counsel in an email dated 14 August 2015. Rule 49 therefore plays no part in this costs analysis.
[7] Costs must be fixed in an amount that is fair and reasonable: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). I also take into account the principles contained in Rule 57.01 of the Rules which include a consideration of the expectation of the parties with respect to costs to be paid. In my view, this was a straight forward motion involving settled law and a relatively uncomplicated factual background.
[8] The defendant seeks the all inclusive amount of $15,082.12 as its costs on a partial indemnity basis. The plaintiff argues that this amount is excessive. There is a delicious irony in this submission as the plaintiff’s own Bill of Costs for the motion was in the amount of $26,592.78, a total exceeding the amount sought by the defendants by approximately $11,000.
[9] I find the amount of costs requested by the defendants in this case, where cross-examinations were conducted, to be reasonable and fair.
[10] Accordingly, I order that costs to be fixed in the amount of $15,082.12 shall be paid by the plaintiff to the defendants forthwith.
S.A.Q. Akhtar J.
Released: 30 November, 2015
CITATION: Andrejs Management Inc. v. Bourdignon et al, 2015 ONSC 7452
COURT FILE NO.: CV-14-512272
DATE: 20151130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDREJS MANAGEMENT INC.
Plaintiff
– and –
TIM BOURDIGNON, CT QUALITY PROPERTY MANAGEMENT INC., MICHELLE McVICAR and COSTA KALAMARIS
Defendants
COSTS JUDGMENT
S.A.Q. Akhtar J.