Court File and Parties

COURT FILE NO.: CV-13-476346 DATE: 20160608 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

STUART BUDD & SONS LIMITED, 290756 ALBERTA LTD., SAAB ON THE QUEENSWAY LTD., 798983 ONTARIO INC., 9216-0415 QUEBEC INC., 6847781 CANADA LTD., FORBES SAAB AND USED CAR SHOP INC. and SPRINGMAN & SPRINGMAN LIMITED Plaintiffs

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IFS VEHICLE DISTRIBUTORS ULC, INTERNATIONAL FLEET SALES INC., MICHAEL LIBASCI and PEGGY KING Defendants

Counsel: Andy Seretis, for the Plaintiffs Matthew J. Latella and Sarah Petersen, for the Defendants

HEARD: In Writing

COSTS ENDORSEMENT

MARROCCO A.C.J.S.C.

[1] The plaintiffs who were successful in responding ask for partial indemnity costs in the amount of $50,130.33 inclusive of fees, disbursements and HST payable forthwith.

[2] I am satisfied that the plaintiffs claim for costs is reasonable. There is no reason to depart from the general rule that a successful party is entitled to costs.

[3] The bulk of the work was completed by Mr. Seretis who is a junior to Mr. Stearns which is what one would expect.

[4] This is the second time that this motion has been heard. The plaintiffs were successful on the first motion but that decision was set aside on appeal. At the appeal the defendants claimed approximately $50,000 in partial indemnity costs for the appeal proceeding alone, although the Court of Appeal ordered $20,000 all-inclusive. This provides some measure of the costs expectations of the defendants. The motion raised legal issues of some complexity. The motion was important to the parties because it could have ended the proceeding.

[5] The Court of Appeal left the matter of the costs of the first jurisdictional motion to me at paragraph 92 of its decision. Clearly, the Court of Appeal thought that the costs of the first motion could follow the costs of the second.

[6] I do not accept the defendants’ submission that the conduct of the judge who heard the first motion was such that the plaintiffs should be denied costs for the April 2014 proceeding. While the Court of Appeal set aside the decision on the first motion, it did not indicate that there were no costs on account of the first motion. Rather the Court of Appeal left the costs of the first motion to be decided by the judge who heard the second motion.

[7] I do not accept the defendant’s argument that they should be awarded costs because they successfully raised the fact that the plaintiff’s affidavit evidence was deficient. The defendants cross-examined Mr. Budd on two occasions prior to the first motion and never asked him about the source of his information. They then argued that Mr. Budd’s affidavit evidence was inadmissible because his affidavit did not disclose the source of his information and belief. The defendants were entitled to conduct themselves in this fashion but I decline to reward them for it. It was foreseeable that the likely consequence of such behaviour would be nothing more than an adjournment coupled with a direction to the plaintiffs to correct their affidavit. In this regard I endorse the Advocates’ Society’s Statement in its Best Practices Applicable to Motions p.3:

“Counsel should communicate an intention to bring a motion, articulate the basis for the motion and seek a mutually convenient date well in advance of preparing or serving motion materials.” [Emphasis added]

[8] I do not accept the defendants’ argument that costs for attendance at the motion before me should be in the cause. The fact that I arrived at the same conclusion as the judge who heard the first motion on the merits but for a different reason is considerably less significant than the fact that the defendants’ motion has been successfully resisted.

[9] The defendants will pay to the plaintiffs $50,130.33 inclusive of fees, disbursements and HST forthwith.

MARROCCO A.C.J.S.C. Released: 20160608