Citation: Todd Family Holdings Inc. v. Gardiner, 2015 ONSC 7533

OSHAWA COURT FILE NO.: CV-76324-11

DATE: 2015-12-02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TODD FAMILY HOLDINGS INC. and FUTURE IMAGE HOLDINGS CORPORATION Plaintiffs

– and –

ROY JOHN WILLIAM GARDINER, BAREFOOT SCIENCE TECHNOLOGIES INC., DAYL MARIE ARMSTRONG, BAREFOOT SCIENCE HOLDINGS INC., BAREFOOT SCIENCE DIRECT INC., BAREFOOT SCIENCE GROUP MARKETING INC. and ADVANCED BAREFOOT TECHNOLOGIES INC. Defendants

– and –

ROY JOHN WILLIAM GARDINER Third Party Plaintiffs

– and –

LANCE TODD, BAREFOOT SCIENCE PRODUCTS & SERVICES INC., and 2215535 ONTARIO INC. Third Party Defendants

Counsel:

David Taub and Robert Choi, for the Plaintiffs and Third Party Defendants, Todd Family Holdings Inc., Future Image Holdings Corporation, Lance Todd, Barefoot Science Products & Services Inc. and 2215535 Ontario Inc.

Matthew Milne-Smith and Bryan D. McLeese, for the Defendants

BEFORE: McISAAC J.

ENDORSEMENT (COSTS OF THE TRIAL)

[1] The plaintiffs were successful at trial and received an award against the defendants in the amount of $2,217,602.28 USD along with incidental relief. This included the right to exploit certain IP owned by the defendant, Roy Gardiner, to realize on this award which reflected an investment in his companies. I found that the Todd parties would not have advanced these monies except for the active misrepresentations and material non-disclosures of the defendants.

[2] Given the findings and the fact that the defendants continued to practice deceit during the course of the litigation and at trial, the plaintiffs are seeking full indemnity costs in the amount of $960,432.26, the defendants recognize that, given the serious findings made against them, the plaintiffs are entitled to substantial indemnity costs reasonably incurred in the amount of $500,000.

[3] I appreciate that the plaintiffs are seeking significant costs and that full indemnity costs should be awarded in extremely limited and exceptional circumstances where an offending party has acted in a reprehensible manner such as engagement in a course of fraudulent conduct involving “inordinate and blatant wrong-doing”: see Ottawa Community Housing Corporation v. Foustanellas (Argo Carpets), 2015 ONCA 276 at para. 94. I have catalogued the litany of acts of malfeasance practiced by the defendants in my trial judgment and they have been referred to at length in the plaintiffs’ written submissions on this issue: see 2015 ONSC 4432. Suffice it to say, in my view this case cries out for the extraordinary award sought by them.

[4] Finally, I have considered the omnibus Bill of Costs filed by the plaintiff. I am satisfied that the complexity of the litigation justifies these charges when one factors in the fact that the deception practiced by the defendants financially hobbled the plaintiffs to such an extent that they were frustrated in their capacity to fund this litigation. Although the Bill is significant it is, in my view, completely reasonable given these circumstances.

[5] In the result, the plaintiffs are awarded costs in the fixed amount of $960,432.26 which represents full indemnification for the legal fees that they have paid to several law firms to prosecute this litigation or that they presently owe for those efforts. This award is inclusive of HST.

McISAAC, J.

Released: December 2, 2015