8355266 Canada Inc. v. S.W. Hospitality Inc., 2016 ONSC 1800
CITATION: 8355266 Canada Inc. v. S.W. Hospitality Inc., 2016 ONSC 1800
COURT FILE NO.: CV-14-5713-00
DATE: 2016-03-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
8355266 CANADA INC. and JASWINDERPAL DHILLON
Plaintiffs
- and -
S.W. HOSPITALITY INC. and RICK SMICIKLAS
Defendants
COUNSEL:
John Gray, for the Plaintiffs
Doug LaFramboise, for the Defendants
HEARD: September 15, 2015, at Brampton, Ontario
BEFORE: Justice David Price
Reasons For Decision
NATURE OF MOTION
[1] When the court has determined the main issues in a proceeding, based on its findings as to the parties’ legal rights and obligations, it turns its attention to the making of a costs order. The objectives of such an order include not only indemnifying the litigant whose legal rights were vindicated, but sanctioning conduct that was unreasonable. At this stage, therefore, the reasonableness of each party’s conduct comes into greater focus.
[2] When a dispute developed between S.W. Hospitality Inc. (“SWH”), the franchisor and owner of the Wild Wing Restaurant franchise, and its Master Franchisor, 8355266 Canada Inc. (“835”) and its owner, Jaswinderpal Dhillon, 835’s lawyer prepared a Claim and hired a process server, Robert Hastings, to serve it on SWH and its sole shareholder, Rick Smiciklas. Mr. Hastings later informed 835’s lawyer that he had served the Claim on Mr. Smiciklas and SWH. When the defendants did not deliver a Statement of Defence, 835’s lawyer, relying on Mr. Hastings’ affidavits of service, noted them in default and obtained a judgment against them.
[3] When Mr. Smiciklas received a Notice of Examination to enforce the default judgment, he moved to set the judgment aside, stating that he had no knowledge of the Claim until he received the Notice of Examination. After examining the evidence, the court found that the process server’s affidavits of service were unreliable, held that the defendants had not been properly served, and set the judgment aside.
[4] The parties were unable to agree on who should be responsible for the costs of the default judgment and of the motion to set it aside. This endorsement deals with that issue.
FACTS RELEVANT TO COSTS
[5] The court rejected the evidence of Mr. Hastings that the person with whom he left the Claim at SWH’s office one night was a manager, rather than a tradesman. It held that he had not served the Claim on SWH. It also rejected Mr. Hastings’ evidence that the person with whom he left the Claim at Mr. Smiciklas’ home, a business associate who was reviewing scripts at the time, was “a member of the same household.” It therefore held that he also had not served the Claim on Mr. Smiciklas. Because the Claim had not been properly served on either defendant, they were entitled as of right to have the default judgment set aside, and the court made an order accordingly.
[6] 835 and Mr. Dhillon failed to demonstrate that they would be prejudiced by the default judgment being set aside, other than being delayed in being able to execute on their judgment. SWH and Mr. Smiciklas would have suffered greater prejudice had the court refused to set the judgment aside and permit them to deliver a defence.
[7] 835 and Mr. Dhillon relied on the fact that they brought the action to the attention of SWH by means of demand letters, and by correspondence that their lawyer later had with Mr. LaFramboise, a lawyer who contacted them on behalf of SWH and Mr. Smiciklas. The court held, based on the jurisprudence, that the defendants’ knowledge that an action had been commenced against them did not validate service of the Claim on them.
[8] The court found that allowing SWH and Mr. Smiciklas to defend against the action might be some negative impact on the administration of justice owing to their refusal of 835 and Mr. Dhillon’s reasonable request that Mr. LaFramboise accept service of the Claim on their behalf. However, it concluded that a refusal to set the judgment aside would do more harm, by permitting 835 and Mr. Dhillon’s aggressive litigation and questionable affidavits of service to deprive SWH and Mr. Smiciklas of their right to have the action tried on its merits.
[9] Mr. Smiciklas and SWH wrote to the lawyer for 835 and Mr. Dhillon on April 24, 2015, asking for their consent to setting aside the default judgment and lifting the noting in default. They also delivered an Offer to Settle. 835 and Mr. Dhillon refused the request and did not accept the Offer, and SWH and Mr. Smiciklas served their motion two months later.
ISSUES
[10] The court must now determine whether either party should pay the other’s costs of the default judgment, or of the motion to set it aside, and, if so, the amount of the costs to be paid.
POSITIONS OF THE PARTIES
[11] SWH and Mr. Smiciklas claim their costs of the motion based on their success in obtaining an order setting the judgment aside. They rely on the Offer to Settle that they served prior to the hearing of the motion, and seek their costs from that date on a substantial indemnity scale. They claim costs in the amount of $15,560.10, including costs of $5,186.70 that they incurred before serving their Offer, which they claim on a partial indemnity scale, and the costs of $10,373.40 that they incurred after serving the Offer, which they claim on a substantial indemnity scale.
[12] 835 and Mr. Dhillon claim a credit for the costs of $2,827.70 that they wasted in attempting to serve their Claim and obtaining default judgment, and for the further costs of $428.65 that they wasted in issuing and filing Writs of Seizure and Sale. They also claim their costs of the motion to set aside the judgment, which amounted to $12,880.25, and which they claim on a partial indemnity scale, or $18,233.66, which they claim on a substantial indemnity scale. Alternatively, they ask that the costs of the motion be payable in the cause.
ANALYSIS AND LAW
a) General principles
[13] The court’s determination of costs is governed by section 131 of the Courts of Justice Act,[^1] and in Rule 57.01 of the Rules of Civil Procedure.[^2] Section 131 provides for the general discretion to fix costs. Rule 57.01 provides guidance as to the exercise of that discretion by enumerating certain factors that the court may consider when assessing costs.
[14] Among the factors set out in Rule 57.01(1) are the following:
(i) The complexity of the proceeding;
(ii) The importance of the issues;
(iii) The conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(iv) Any offers to settle;
(v) The principle of indemnity;
(vi) The concept of proportionality, which includes at least two factors:
(a) The amount claimed and the amount recovered in the proceeding; and,
(b) The amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(vii) Any other matter relevant to the question of costs.
[15] Justice Perell summarized the purposes of costs orders in 394 Lakeshore Oakville Holdings Inc. v. Misek, in 2010. He stated:
Modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements.[^3] (internal citations omitted).
[16] Ultimately, in determining the costs to be awarded, the court applies fairness and reasonableness as overriding principles.[^4] In assessing what is fair and reasonable, it does not engage in a mechanical exercise but, rather, takes a contextual approach, applying the principles and factors discussed above, and sets a figure that is fair and reasonable in all the circumstances.[^5] Rule 1.04(1.1) requires the court to consider proportionality; that is, the amount of costs ordered should be proportional to the amount of money or other interests at stake in the proceeding.[^6]
[17] The court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As the Court of Appeal pointed out in Boucher et al. v. Public Accountants Council for the Province of Ontario, in 2004, the award of costs must be in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings, rather than an exact measure of actual costs incurred by the successful litigant.[^7]
[18] In reviewing a claim for costs, the court does not undertake a line by line analysis of the hours claimed, and should not second-guess the amount claimed, unless it is clearly excessive or overreaching. It considers what is reasonable in the circumstances and, taking into account all the relevant factors, awards costs in a global fashion.[^8]
[19] The general rule is that costs follow the event and will be awarded on a partial indemnity scale.[^9] In special circumstances, costs may be withheld from the successful party or ordered to be paid to the unsuccessful party, and the scale of costs may be higher, but those cases are exceptional and generally involve circumstances where one party to the litigation has behaved in an abusive manner, brought proceedings wholly devoid of merit, and/or has unnecessarily run up the costs of litigation.[^10]
b) Entitlement to costs
[20] SWH and Mr. Smiciklas were successful in the motion and are therefore presumptively entitled to their costs on a partial indemnity scale. I must consider whether their conduct was so unreasonable as to merit rebuke by depriving them of their costs. For the reasons that follow, I find that it was not.
[21] 835 and Mr. Dhillon rely on the fact that SWH and Mr. Smiciklas did not instruct Mr. LaFramboise to accept service of the Claim on their behalf. They note that the court indicated in its earlier reasons that “it might have a negative may be some negative impact on the administration of justice by permitting SWH and Mr. Smiciklas to defend against the action in spite of their refusal of the reasonable request by 835 and Mr. Dhillon that Mr. LaFramboise accept service of the Claim on their behalf.”
[22] Although the plaintiff’s request that Mr. LaFramboise accept service was reasonable, the court would require evidence before concluding that the defendants’ failure to instruct Mr. LaFramboise to accept service was unreasonable. 835 and Mr. Dhillon have not tendered such evidence, and the court is unable, without it, to conclude that the refusal was unreasonable.
[23] In Mendlowitz v. Chiang (Motion re Service on Floratino), in 2011, Justice Marrocco declined to draw any adverse inference concerning the lawyer’s refusal to accept service on behalf of the defendant. He stated, “Mei Huang may have had a very good reason for refusing to accept the documents. However, her reasons for failing to accept the documents cannot affect the validity of the service of those documents upon her for this court's purposes.”[^11]
[24] Similarly, Justice Spies, in MacLeod v. Rayment & Collins Ltd., in 2006, declined to conclude that the defendant, and the lawyer representing the defendant’s employer corporation, had “failed to cooperate” when the lawyer refused a request by plaintiff’s counsel to accept service of a Claim on behalf of the employee. Justice Spies found that it was reasonable for the defendant employee to take a short time to retain counsel independent of the corporation.[^12]
[25] In Royal Trust Corp. of Canada v. Dunn, 1991 7227 (ON SC), Borins J. noted that a lawyer assumes a heavy responsibility when he accepts service of a Claim on behalf of a client, because of the serious consequences that can ensue if the client later fails to receive notice of the Claim. Justice Borins noted that even where a solicitor accepts service on behalf of a defendant, the plaintiff takes a risk that the defendant will not receive notice, and that the judgment will be set aside, even many years later. He stated:
Although the alternatives to personal service are provided as a convenience, a plaintiff who uses an alternative to personal service takes the risk, which is recognized by sub-rule 16.07(a), that the statement of claim will not come to the defendant's notice, in which case any step taken as a result of the default of the defendant will in all probability be set aside due to the absence of due process. That is what happened in Stanley v. Rumble, [1942] O.W.N. 435 (H.C.J.), where a default judgment, obtained in circumstances where a solicitor accepted service of a writ of summons on behalf of a defendant but failed to notify the defendant, was set aside when it came to the attention of the defendant 17 years after it had been obtained.
Therefore, it is my view that a solicitor who wishes to take advantage of rule 16.03(2) must assume the obligation of confirming that the solicitor upon whom it is intended to serve the statement of claim is the defendant's solicitor for the purpose of the action and has authority to accept service on behalf of the defendant. Rule 16.03(2) is not intended to be a trap for the defendant, but is intended to be a convenience for the plaintiff when it is used properly. It was never intended to achieve such a far-reaching, burdensome and unjust result as counsel for the plaintiff would have it achieve.
I do not agree with Mr. Davis' submission that for the purpose of rule 16.03(2) the solicitor acquires the client's authority to accept service because the solicitor is deemed to have the client's authority by the act of accepting service on the basis of rule 16.03(3). The purpose of the rule is to warn the solicitor that he or she is to take care to obtain the client's authority to accept service and imposes on the solicitor a duty to the court to do so. Rule 16.03(3) provides that a solicitor who accepts service is deemed to "represent to the court" that he or she has the client's authority to accept service and is intended as a warning to the solicitor not to accept service in the absence of actual authority to do so. This is because the plaintiff is entitled to rely on the solicitor's acceptance of service as the foundation for obtaining a default judgment should the defendant fail to respond to the statement of claim which, of course, can result in serious consequences to a defendant particularly where, as in this case, the defendant has no notice of the plaintiff's claim. This underscores the serious responsibility to the court -- as well as to the parties -- which a solicitor assumes by accepting service of a statement of claim on behalf of a defendant and is intended to ensure that the solicitor has the defendant's authority to do so.[^13] [Emphasis added]
[26] In clarifying the intent of rule 16.03(3) (permitting service on a solicitor who agrees to accept service on behalf of the client), Justice Borins cited Swinfen Eady J. of the English Court of Appeal in Yonge v. Toynbee, in 2010, who commented on the necessity of assuming that a solicitor had authority from his client in order to preserve the integrity and effectiveness of legal representation in the courts. In the context of a case in which solicitors had conducted a defence in the absence of the client's authority, Eady J. stated:
I wish to add that in the conduct of litigation the Court places much reliance upon solicitors, who are its officers; it issues writs at their instance, and accepts appearances for defendants which they enter, as a matter of course, and without questioning their authority; the other parties to the litigation also act upon the same footing, without questioning or investigating the authority of the solicitor on the opposite side; and much confusion and uncertainty would be introduced if a solicitor were not to be under any liability to the opposite party for continuing to act without authority in cases where he originally possessed one.
It is always open to a solicitor to communicate as best he can with his own client, and obtain from time to time such authority and instructions as may be necessary. But the solicitor on the other side does not communicate with his opponent's client, and, speaking generally, it is not proper for him to do so, as was pointed out by Kekewich J. in In re Margetson & Jones. It is in my opinion essential to the proper conduct of legal business that a solicitor should be held to warrant the authority which he claims of representing the client; if it were not so, no one would be safe in assuming that his opponent's solicitor was duly authorized in what he said or did, and it would be impossible to conduct legal business upon the footing now existing; and, whatever the legal liability may be, the Court, in exercising the authority which it possesses over its own officers, ought to proceed upon the footing that a solicitor assuming to act, in an action, for one of the parties to the action warrants his authority.[^14] (Citations omitted)
[27] On the above reasoning, Justice Borins rejected the plaintiff’s argument that a lawyer who had represented a client in an acquisition of property remained his solicitor for the purpose of later accepting service of the Statement of Claim in the proceeding that was before him. He stated, “It is a well-established principle that there is no such thing as a general relationship of solicitor and client which provides the solicitor with a general authority to do acts which bind the client in the absence of the client's authority.”
[28] The serious consequences, both for the client and the solicitor, of a solicitor accepting service of a Claim are evident from cases in which unintended consequences have ensued due to miscommunication or neglect:
a) A foreign client was found to have attorned unintentionally to the jurisdiction of the court by having his solicitor accept service of a writ.[^15]
b) A lawyer for a school board who, as a matter of convenience to the board’s employees, routinely accepted service of documents for employees in proceedings that arose from their employment with the board, was alleged to have represented the employee, giving rise to an allegation of conflict of interest by the employee.[^16]
c) A lawyer who agreed to accept service was alleged to have given advice to the lawyer who had asked him to do so, leading to a challenge, based on conflict of interest, to his ability to represent his own client in the proceeding.[^17]
d) A solicitor agreed to accept service, and then became embroiled in litigation when the client revoked his instructions to do so.[^18]
e) A solicitor agreed to accept service, and then was not given the courtesy of advance notice, three weeks later, that his client was about to be noted in default.[^19]
f) A solicitor who was asked to accept service and replied that he was awaiting instructions from his client learned that, unbeknownst to him and his client, the client was deemed to have been personally served (by delivery of the application to her son) and default judgment had been obtained against her.[^20]
g) The unclear response of a solicitor who was asked to accept service resulted in confusion regarding the date of service and the date when an Answer was due, with the result that the application proceeded to an uncontested proceeding and costs were apportioned between the respondent and her lawyer when the proceeding had to be set aside.[^21]
h) A lawyer who accepted service for a client who was a friend, with the intention of doing as little as possible, in the hope that the plaintiff might become disinterested in pursuing the matter, was disciplined for professional misconduct.[^22]
[29] In summary, there are many cases in which a lawyer has good reason for refusing to accept service of a Claim for a client or the client has good reasons to instruct the lawyer not to do so. The lawyer may not have the required expertise, may face personal or professional circumstances that prevent him from devoting time to the case, or may have a conflict of interest owing to litigation involving the client and another litigant, in an unrelated proceeding that cannot be disclosed without impairing the client’s interests.
[30] In many cases where a lawyer refuses to accept service, the court simply does not have the necessary evidence to determine why the request was refused, and cannot inquire into the reasons without encroaching on communications that are protected by solicitor and client privilege. In these circumstances, while the court can readily conclude that a request that is made to a lawyer to accept service is reasonable, it cannot determine whether the refusal to do so is unreasonable on the part of either the lawyer or the client.
[31] For these reasons, I do not find that the defendants’ conduct was unreasonable, and conclude that they should not be prevented, on this ground, from being awarded the costs to which they are presumptively entitled.
c) Amount of costs
Importance and complexity of the issues
[32] Neither counsel has provided any information concerning the amounts at stake in the proceeding. The defendants note that the motion was important to them because if they had been unsuccessful, they would have lost their right to defend against the action. I find that there were no issue of importance to persons not parties to the litigation.
Reasonableness and offers to settle
[33] As noted above, the general rule is that costs follow the event and will be awarded on a partial indemnity scale.[^23] In special circumstances, costs may be awarded on a higher scale, but those cases are exceptional and generally involve circumstances where one party to the litigation has behaved in an abusive manner, brought proceedings wholly devoid of merit, and/or unnecessarily run up the costs of the litigation.[^24]
[34] The outcome of the motion was the result of the court’s assessment of the process server’s affidavits of service, which the court found to be unreliable. While their unreliability may not have been apparent to the plaintiffs when they received them, it should have been apparent upon a review of the defendants’ affidavits.
[35] On July 7, 2015, after delivering their affidavits, disclosing that neither Mr. Smiciklas nor SWH were properly served, the defendants served an Offer to Settle in which they offered to have the noting in default lifted, the default judgment set aside, without costs, and the defendants deliver their statements of defence. The offer should have been accepted, as it should have been apparent to the plaintiffs, at that point, that there was no reasonable prospect of successfully opposing the motion.
[36] Although the defendants’ Offer was not in strict conformity with Rule 49.10, as it did not remain in place until the commencement of the hearing, I am exercising the court’s discretion, pursuant to Rule 49.13 to take the Offer into account with respect to costs. Based on the plaintiffs’ failure to accept the Offer, they will be required to pay the defendants’ costs from the date of delivery of the offer on a substantial indemnity scale.
Indemnification - The hourly rates charged and the time spent
[37] In determining the appropriate hourly rates to be assigned to the lawyers involved in the motion, the court follows the approach taken by Aitkin J. in Geographic Resources.[^25] That is, the starting point is the successor of the Costs Grid, namely, the “Information for the Profession” bulletin from the Costs Sub-Committee of the Rules Committee (the “Costs Bulletin”), which can be found immediately before Rule 57 in the Carthy or Watson & McGowan edition of the Rules, sets out maximum partial indemnity hourly rates for counsel of various levels of experience.
[38] The Costs Bulletin suggests maximum hourly rates (on a partial indemnity scale) of $80 for law clerks, $225 for lawyers of less than 10 years’ experience, $300 for lawyers of between 10 and 20 years’ experience, and $350 for lawyers with 20 years’ experience or more.[^26] The upper limits in the Costs Bulletin are generally intended for the most complex and important of cases.
[39] The Costs Bulletin, published in 2005, is now dated. Aitkin J. considered adjusting the Costs Subcommittee’s hourly rates for inflation, as Smith J. did in First Capital (Canholdings) Corp. v. North American Property Group,[^27] but the unadjusted rates of the lawyers in her case were only slightly less than the actual fees they charged, so she elected to use their unadjusted rates. Normally, however, it is appropriate to adjust the hourly rates in the Costs Bulletin to account for inflation since 2005.
[40] Based on the Bank of Canada Inflation Calculator, available online at http://www.bankofcanada.ca/rates/related/inflation-calculator/, the 2015
equivalent of the hourly rates in the Costs Bulletin are $94.43 for law clerks, $265.60 for lawyers of under 10 years’ experience, $354.13 for lawyers of between 10 and 20 years’ experience, and $413.15 for lawyers of over 20 years’ experience.
[41] The court is guided by the rates in the Costs Bulletin, not the actual hourly rates charged. The actual rates charged are relevant only as a limiting factor, in preventing the costs awarded from exceeding the actual fees charged. The Costs Subcommittee’s rates apply to all lawyers and all cases, so everyone of the same level of experience starts at the same rate.
[42] The court adjusts the hourly rate, or the resulting fees, to reflect unique features of the case, including the complexity of the proceeding, the importance of the issues, and the other factors set out in Rule 57.01(1). If an excessive amount of time was spent, or too many lawyers worked on the file, the court reduces the resulting amount of fees accordingly. As long as the resulting amount does not exceed the amount actually charged to the client, the actual fee that the client agreed to pay is irrelevant.
[43] Mr. LaFramboise, the solicitor who represented the defendants in the motion, was called to the Bar in Ontario in 2011. He had practiced law for less than 10 years when this motion was heard. Based on the Costs Bulletin, adjusted for inflation, Mr. LaFramboise is entitled to claim an hourly rate of $265.60, which I round down to $265, on a partial indemnity scale, for the time he spent on the case in 2015. He charges his client $425.
[44] Rule 1 of the Rules of Civil Procedure defines substantial indemnity costs as meaning "costs awarded in an amount that is 1.5 times what would otherwise be allowable in accordance with Part I of Tariff A" - i.e. 1.5 times the partial indemnity rate.[^28] Costs calculated on a substantial indemnity scale, obviously, represent something less than full indemnity. Mr. LaFramboise’s substantial indemnity hourly rate, on that basis, is $398.40, which I round up to $400.
[45] Neither Mr. LaFramboise nor the plaintiffs’ lawyer, Mr. Gray, provides a detailed breakdown or dockets to support the time they claim, but each provides a summary of the time they spent on different tasks. Mr. LaFramboise spent 15 hours preparing his clients’ motion record, factum, and brief of authorities. Mr. Gray spent 3.2 hours reviewing the defendants’ motion record and preparing the plaintiffs’ affidavit, and 12.7 hours preparing his factum and brief of authorities, for a total of 15.9 hours.
[46] Mr. LaFramboise spent 9 hours preparing for cross-examinations and 5 hours attending them. Mr. Gray spent 12.6 hours in preparation and attendance. The 1.4 hours difference is not substantial.
[47] Mr. LaFramboise spent 4 hours doing legal research and preparing for the motion and 6 hours attending. Mr. Gray spent 3 hours preparing for the motion. He does not disclose how long he spent attending. I note that the motion was first spoken to before lunch, and was the last motion heard in court that day, and that argument concluded at 5:40 p.m. Accordingly, I find that the 6 hours claimed by Mr. LaFramboise for his attendance is reasonable.
[48] Making comparisons where the Costs Outlines permit, I do not find that they disclose a substantial difference in the time each lawyer spent and I do not find that the time either spent was unreasonable. I accordingly allow the defendants their time prior to the preparation for cross-examinations, amounting in total to 18 hours, at $265 per hour, for a total of $4,770, and the time spent after that, amounting in total to 24 hours, at $400 per hour, for a total of $9,600. HST at 13% ($1,868) will be allowed for these amounts, which increases the amount to $16,238.10.
Other factors - Disbursements
[49] The disbursements claimed by Mr. LaFramboise consist solely of the examination fee of $628, which is not disputed, and is allowed.
Proportionality and the reasonable expectation of the unsuccessful parties
[50] I find that the resulting costs of $16,866.10 is not disproportionate to the costs that the plaintiffs should have expected to pay if unsuccessful, having regard to their own lawyer’s solicitor and client fees, which amount to $12,242.50 plus HST, and disbursements of $1,857.10, inclusive of HST, for a total of $15,691.12.
CONCLUSION AND ORDER
[51] For the foregoing reasons, it is ordered that:
- The plaintiffs shall pay the defendants’ costs, fixed at $16,866.10, inclusive of HST and disbursements, within 60 days.
Justice David Price
Released: March 14, 2016
CITATION: 8355266 Canada Inc. v. S.W. Hospitality Inc., 2016 ONSC 1800
COURT FILE NO.: CV-14-5713-00
DATE: 2016-03-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
8355266 CANADA INC. and JASWINDERPAL DHILLON
Plaintiffs
- and –
S.W. HOSPITALITY INC. and RICK SMICIKLAS
Defendants
COSTS ENDORSEMENT
Price, J.
Released: March 14, 2016
[^1]: Courts of Justice Act, R.S.O. 1990 c. C.43 [^2]: Rules of Civil Procedure, RRO 1990, Reg 194 [^3]: 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, [2010] O.J. No. 5692 (S.C.J.), para. 10 [^4]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); and Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (C.A.) [^5]: Gratton-Masuy Environmental Technologies Inc. (c.o.b. Ecoflow Ontario) v. Building Materials Evaluation Commission, 2003 8279 (ON SCDC), 2003 ONSC 8279 (ON SCDC), [2003] O.J. No. 1658, at para. 17 [^6]: Patene Building v. Niagara Home, 2010 ONSC 468 [^7]: Boucher et al. v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), 2004 ONCA 14579, 71 O.R. (3d) 291, [2004] O.J. No. 2634, (Ont. C.A.) [^8]: See the cases referenced in Fazio v. Cusumano 2005 33782 (ON SC), 2005 CarswellOnt 4518 (S.C.J.), at para. 8. [^9]: Bell Canada v. Olympia & York Developments Limited et. al. (1994), 1994 239 (ON CA), 1994 ONCA 239, 17 O.R. (3d) 135 (C.A.) [^10]: Standard Life Assurance Company v. Elliott (2007), 2007 18579 (ON SC), 86 O.R. (3d) 221 (S.C.J.) [^11]: Mendlowitz v. Chiang (Motion re Service on Floratino), 2011 ONSC 1756, para. 6 [^12]: MacLeod v. Rayment & Collins Ltd., 2006 ONSC 20325, paras. 14-15 [^13]: Royal Trust Corp. of Canada v. Dunn, 1991 7227 (ON SC) [^14]: Yonge v. Toynbee, [1910] 1 K.B. 215, [1908-10] All E.R. Rep. 204 (C.A.), at pp. 233-34 K.B., pp. 210-11 All E.R. [^15]: Fasig-Tipton Co. Inc. v. Willmot and Burns; Willmot and Burns v. Fasig-Tipton Co. Inc. et al., 1969 207 (ON SC), 1969 ONSC 207, [1969] 2 O.R. 1 [^16]: DiNunzio v. City of Hamilton, 2010 ONSC 1693, paras. 29 and 30 [^17]: Wyn v. Vanden Broek, 2011 ONSC 4730, at paras. 29 and 51 [^18]: Schreiber v. Mulroney, 2007 56529 (ON SC), Cullity J., at para. 24 [^19]: Richmark Home Builders Ltd. v. Cameron, 2004 ONSC 11966 [^20]: Transportation Lease Systems Inc. v. Topping, 2007 ONSC 19797, para. 10 [^21]: Campeau v. Campeau, 2005 27600 (ON SC), paras. 4-11 [^22]: Law Society of Upper Canada v. Thomas Michel Hicks, 2006 ONLSAP 1 [^23]: Bell Canada v. Olympia & York Developments Limited et. al. (1994), 1994 239 (ON CA), 1994 ONCA 239, 17 O.R. (3d) 135 (C.A.) [^24]: Standard Life Assurance Company v. Elliott (2007), 2007 18579 (ON SC), 86 O.R. (3d) 221 (S.C.J.) [^25]: Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041, paras. 7 and 11 to 16 [^26]: “Information for the Profession” bulletin (“the Costs Bulletin”) from the Costs Sub-Committee of the Rules Committee (that the Costs Sub-Committee of the Rules Committee issued to replace the Costs Grid, which it repealed in 2005). The Costs Bulletin has advisory status only and not statutory authority, as it was not included in the Regulation that repealed the Costs Grid. [^27]: First Capital (Canholdings) Corp. v. North American Property Group, 2012 ONSC 1359, 2012 ONSC 1359 (S.C.J.) [^28]: See Hanis v. University of Western Ontario, 2006 23155 (ON SC), [2006] O.J. No. 2763 (Ont. S.C.), per Power J.