Superior Court of Justice – Ontario

COURT FILE NO.: CV-14-515076

MOTION HEARD: September 28, 2015

Re: QUEENSCORP (ATWATER) LTD., Plaintiff v. WINDCATCHER (ATWATER) LTD., RODNEY MALE, and WINDCATCHER DEVELOPMENT CORPORATION, Defendants

BEFORE: Master Lou Ann M. Pope

APPEARANCES: Michael R. Kestenberg, Kestenberg Siegal Lipkus LLP, for plaintiff Fax: 416-597-6567

Mervyn D. Abramowitz, Kronis, Rotsztain, Margles, Cappel LLP, for defendants Fax: 416-306-9874

AMENDED REASONS FOR ENDORSEMENT

[1] Subsequent to my reasons released on February 4, 2016, Mr. Abramowitz raised an issue regarding my reasons for the costs award on the plaintiff’s abandoned motion for a certificate of pending litigation (“CPL”). In particular, he queried whether I had considered the defendants’ costs outline filed for that motion as being separate from its costs outline filed on the security for costs motion. He raised this concern given my reasons set out at paragraph 30 of my Reasons For Endorsement.

[2] I have now had an opportunity to review the three costs outlines filed on these motions. I am satisfied that the defendants filed separate costs outlines for the CPL motion and the security for costs motion. I am also satisfied that in considering costs of the CPL motion initially, as set out in my Reasons For Endorsement, I overlooked that there were separate costs outlines and I considered that the costs outline in which the defendants sought $22,015.37 was for both motions.

[3] Having now reviewed the defendants’ costs outline for the CPL motion, it is my view that the amount sought by the defendants for the abandoned CPL motion of $22,015.37 is excessive considering that the motion did not proceed beyond the filing of material, no cross-examinations were held and no time was spent to prepare and to argue the merits of the motion. I am cognizant however that counsel would have spent time to prepare for and make submissions on the costs portion of the motion. Further, neither the time sheets nor the client ledger were filed with the costs outline. Lastly, as the defendants submitted, the amount sought must be reduced as some of the time spent and disbursements incurred to prepare for this motion overlapped with the time spent and disbursements incurred on the defendants’ motion for security for costs.

[4] For those reasons, I amend paragraph 37 of my Reasons For Endorsement and grant the defendants their costs of the CPL motion on a substantial indemnity basis fixed in the amount of $12,500 inclusive of fees, taxes and disbursements, payable within 45 days of today.

March 31, 2016 Master Lou Ann M. Pope