Court File and Parties

COURT FILE NO.: CV-16-544562 DATE: 20160610 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CLAIM ANALYTICS INC., Plaintiff AND: JONATHAN POLON AND ACTUARIAL INTELLIGENCE INC. Defendants

BEFORE: Lederman J.

COUNSEL: Matthew Morden, for the Plaintiff Norman Ronski, for the Defendants

HEARD: Written Submissions

Costs Endorsement

[1] The parties dispute entitlement as to costs of the motion for an interlocutory injunction. The plaintiff asserts that, as it was substantially successful on the motion, it should be awarded its partial indemnity costs in the amount of $26,737 all inclusive, as set out in its costs outline. The defendants, on the other hand, submit that the plaintiff achieved only limited success on the motion which if not for the overreaching manner of the plaintiff’s notice of motion, the defendants would have consented to at an early stage thus avoiding the necessity of the hearing of the motion altogether with its attendant expense. The defendants seek their costs on a partial indemnity basis in the amount of $34,934.55, all inclusive, as set out in their costs outline; alternatively, the defendants submit that the costs of the motion be in the cause, thus awaiting the outcome of the action on its merits.

[2] Although the notice of motion is cast in broad terms, the motion itself was argued on a narrow basis, namely the confidentiality of the Diagnosis Database. The other broad relief sought in the notice of motion was not the subject of the oral hearing. This is evident from the opening statement of the judgment which reads “the plaintiff seeks an interim interlocutory injunction against the defendants to prevent the disclosure of confidential information, being the “Diagnosis Database”.

[3] The order that was given was cast in these terms indicating that the defendants were restrained from using in any way, directly or indirectly, the plaintiff’s Diagnosis Database comprised of the seven metrics developed by the defendant, Polon, and utilizing the eighth common diagnosis-related element and that the defendants were restrained from using the Diagnosis Database in any services provided to Munich Re or any other participant in relation to a proposed 2016 Canadian Benchmarking study.

[4] The issue on the motion centered on whether the Diagnosis Database and its elements were in the public domain.

[5] The defendants assert that they would have agreed to the relief actually granted if the notice of motion had been limited in this way. However, no offer was made, nor was any narrow undertaking given by the defendants which would have made this motion unnecessary.

[6] The request for an interlocutory injunction was focused on the Diagnosis Database. It was the basis upon which McEwen J. granted an urgent motion date and was the basis for argument before me.

[7] In the end, the plaintiff was substantially successful and therefore entitled to its costs of the motion. I have reduced the amount of costs sought because some of the evidence adduced by Kevin Pledge in his affidavit on behalf of the plaintiff seems to have been rejected by Mr. Senensky and that resulted in unnecessary expense for the defendants.

[8] Taking into account the factors set out in R. 57.01 (1), I fix the plaintiff’s costs in the amount of $20,000 inclusive of disbursements and applicable taxes, payable by the defendants within 30 days.

Lederman J. Date: June 10, 2016