Court File and Parties

Court File No.: CV-15-532109 Date: 20160512 Superior Court of Justice - Ontario

Re: Ontario Graphite Ltd., Plaintiff And: Jerry Janik, Michael Coscia and Great Lakes Graphite Inc., Defendants

Before: Stewart J.

Counsel: Lisa Goodfellow and Nafisah Chowdhury, for the Plaintiff Michael Donsky and Andrea M. Marsaland, for the Defendants

Heard: In Writing

Endorsement

[1] In my decision of February 19, 2016, I invited counsel to make written submissions on costs if that subject could not be agreed upon by them. I now have received and considered those submissions.

[2] Ontario Graphite seeks its costs on a substantial indemnity basis in the amount of $130,886.09.

[3] The Defendants submit that costs ought to be reserved to the trial judge or, alternatively, that costs should be in the cause.

[4] Although not all of the relief sought by the Plaintiff was granted, it is evident that the Plaintiff achieved substantial success on the motion, which involved issues of great importance to the parties.

[5] In my view, the Plaintiff therefore should receive an award of costs to reflect its substantial success on the motion.

[6] There were extensive affidavits filed on this injunction motion, and lengthy cross-examinations were conducted following their exchange.

[7] However, I expect that a significant portion of the information adduced and the materials generated on this motion will be of considerable use as the action proceeds and will serve to shorten or eliminate the need for any additional examinations.

[8] It further appears that the Plaintiff endeavoured to settle the motion prior to the hearing on a reasonable basis which largely reflected the end result.

[9] When all of the factors affecting the exercise of discretion as to the costs are taken into account, including the over-arching principle of proportionality, I consider a fair and reasonable amount to award the Plaintiff for its costs of the motion is $80,000.00, inclusive of all disbursements and applicable taxes.

[10] The Defendant shall therefore pay that sum to the Plaintiff within 60 days of the date of this decision.

[11] This disposition is without prejudice to the ability to any party to make further submissions to the trial judge when costs are addressed, in light of my observation in paragraph 7 herein.

Stewart J. Date: May 12, 2016