Court File and Parties
COURT FILE NO.: CV-11-9069-00CL DATE: 20160616 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BELL EXPRESSVU LIMITED PARTNERSHIP, Plaintiff AND: CURT-MICHAEL PIECKENHAGEN a.k.a. CURT MICHAEL PIECKENHAGEN a.k.a. CURT PIECKENHAGEN a.k.a. CURT MICHAEL PICCKENHAGEN a.k.a. CURTIS MICHAEL, KURT PIECKENHAGEN, MEGAN ANDERSON, JULITA PIECKENHAGEN, JULITA LUISE PIECKENHAGEN a.k.a. JULIE LUISE, VERA PIECKENHAGEN, CHRISTOPHER BROOKS a.k.a. JASON BROOKS, 1125749 ONTARIO LIMITED, ECCELERATED DIGITAL, ACCELERATED DIGITAL COMMUNICATIONS INC., 121429 ONTARIO INC., 373041 ONTARIO LIMITED, GRAYDON HALL PROPERTY MANAGEMENT LTD., GH CAPITAL CORPORATION, JASON BROOKS, JOHN DOHLEM, JOE HARVEY, JULIE LUISE, MARTIN MAI, CURTIS MICHAEL, JACK RUSHER and ALAN PARSONS, Defendants
AND : SHAW SATELLITE G.P. c.o.b. as SHAW DIRECT™, Plaintiff AND: CURT-MICHAEL PIECKENHAGEN a.k.a. CURT MICHAEL PIECKENHAGEN a.k.a. CURT PIECKENHAGEN a.k.a. CURT-MICHAEL PICCKENHAGEN a.k.a. KURT MICHAEL a.k.a. PAT TURNER, KURT PIECKENHAGEN, MEGAN ANDERSON, JULITA PIECKENHAGEN, JULITA-LUISE PIECKENHAGEN a.k.a. JULES LUISE a.k.a. JULES MICHAEL, VERA PIECKENHAGEN, CHRISTOPHER BROOKS a.k.a. CHRIS BROOKS a.k.a. ANDREW BROOKS, NICOLE PIECKENHAGEN, 1125749 ONTARIO LIMITED, ECCELERATED DIGITAL, ACCELERATED DIGITAL COMMUNICATIONS INC., 121429 ONTARIO INC., 373041 ONTARIO INC., GRAYDON HALL PROPERTY MANAGEMENT LTD., GH CAPITAL CORPORATION, ANDREW BROOKS, CHRIS BROOKS, THEO BULK, JULES LUISE, JULES MICHAEL, KURT MICHAEL, PAT TURNER and ALAN PARSONS, Defendants
BEFORE: Mr. Justice H.J. Wilton-Siegel
COUNSEL: C. Bredt, for the Plaintiffs P. Wardle and J. Wilkes, for the Defendants
HEARD: In Writing
Costs Endorsement
[1] The defendants in these companion actions appealed a decision of Master Jean regarding a motion that the defendants had brought seeking production of documentation pertaining to the plaintiffs’ damage claims.
[2] The Court concluded that the Master’s award should be set aside insofar as it denied production of the documentation sought by the defendants, with the exception of disclosure pertaining to certain “flow-through costs” of the plaintiffs. With respect to disclosure of these costs, which was the principal issue on the appeal, the Court rejected the defendants’ appeal of the Master’s decision denying such disclosure.
[3] On this appeal, the defendants initially sought a broader range of documents than they ultimately sought at the hearing of their appeal. The plaintiffs offered to settle the appeal, essentially on the basis of production of the documentation that was required pursuant to the Court’s decision. The principal issue in dispute at the hearing was the defendants’ demand for production of information pertaining to the plaintiffs’ flow-through costs. The result of the Court’s determination of the appeal was that such disclosure was not required.
[4] The plaintiffs argue that they should be entitled to costs on a substantial indemnity basis from the date of their offer to settle on the grounds that they would not have incurred their costs if the defendants had accepted their offer. Alternatively, they suggest that the provisions of Rule 49.10(2) of the Rules of Civil Procedure should apply.
[5] Rule 49.10(2) of the Rules of Civil Procedure is not applicable as the proceeding involved an appeal: see Jones v. Kansa General Insurance Co. (1992), 10 O.R. (3d) 56 at p. 67 (C.A.). Further, there was a legitimate question regarding disclosure of the plaintiffs’ flow-through costs. Accordingly, I see nothing objectionable in the defendants’ pursuit of its appeal, notwithstanding their lack of success.
[6] For their part, the defendants argue that the documentation that they sought pertained to a damages assessment based on lost profits and that the plaintiffs resisted the possible viability of this approach until the hearing. I am not aware, however, of any documentation that the Court ordered and that the plaintiffs were not otherwise prepared to disclose, for reasons related to this difference of views regarding the applicable theory of damages. Accordingly, I see no basis for awarding costs in favour of the defendants on the grounds of substantial success, as they argue.
[7] Based on the foregoing, I conclude that the plaintiffs are entitled to their costs on a partial indemnity basis. They quantify those costs at $33,093.72 on an all-inclusive basis.
[8] The Court is required to exercise its discretion to fix costs that are fair and reasonable in light of the specific facts and circumstances of the case in relation to the factors set out in Rule 57.01(1) of the Rules of Civil Procedure: see Boucher v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634 (C.A.).
[9] In making the determination herein, I have had regard to the following matters. First, the matter was complex and involved, among other things, competing theories of damages and the approach of the Master in respect thereof. Second, the matter was important to both parties, given the amount of the plaintiffs’ damage claims and for other reasons. Third, there is no basis for concluding that the matter did not justify senior counsel, or that the plaintiffs’ counsel failed to staff the matter in a manner which restricted costs to a reasonable level. Fourth, while the plaintiffs’ offer does not attract cost consequences under Rule 49.10(2) of the Rules of Civil Procedure, the fact that the costs incurred could have been avoided if the defendants had accepted the plaintiffs’ offer is a relevant consideration in the circumstances of this case, given that the issue of disclosure had been narrowed by the time of the offer. Lastly, and most importantly, in their own costs submissions, the defendants sought $30,910.68, assuming a decision in their favour. I take this as evidence of the defendants’ reasonable expectations regarding the costs award that they would have expected to pay in the event they were unsuccessful.
[10] Based on the foregoing, I conclude that fair and reasonable costs are $33,000 on an all-inclusive basis, payable by the defendants to the plaintiffs forthwith.