Court File and Parties

Court File No.: CV-14-497239 Date: 20160802 Superior Court of Justice - Ontario

Re: 3Genius Corporation, Plaintiff / Moving Party And: Locationary Inc., Grant Ritchie and Sergejs Marin, Defendants/ Responding Parties

Before: Justice Edward P. Belobaba

Counsel: David Vaillancourt for the Moving Party Bruce Stratton and Sangeetha Punniyamoorthy for the Responding Parties Monique Jilesen for non-party Apple Inc.

Heard: June 15, 2016 and supplementary written submissions

Costs Award

[1] In a decision released on July 5, 2016 I dismissed the plaintiff’s Rule 45.02 motion that certain monies about to be paid by a third party to the defendants be paid into court pending the outcome of the litigation. [^1] I agreed with the plaintiff that it had established a “specific fund” but I dismissed the motion because its claim was, in essence, a claim for damages. I went on to note that if I was wrong on this point, I would still have dismissed the motion because the balance of convenience did not favour the plaintiff. [^2]

[2] At the hearing, the parties provided me with their costs estimates. Had the plaintiff prevailed it would have asked for $53,000 in partial indemnity costs. The defendants would have requested $54,000. These are high numbers for an interlocutory motion. However, both sides expended much time and effort on this motion, arguing each of the three Rule 45.02 requirements in detail and filing a significant volume of material. In these circumstances, I am satisfied that the cost requests are reasonable. The plaintiff submits that the court should fix costs at $53,500.

[3] The successful defendants, however, seek a costs award of $91,627. They say their $54,000 costs estimate should be increased to reflect the additional work that was done after the hearing - preparing and filing supplementary written submissions about the existence of a “specific fund.” The defendants also point to their Rule 49.10 offer to settle that was rejected by the plaintiff and ask for substantial indemnity costs from the date of the offer.

[4] The plaintiff reminds the court, correctly, that the parties’ supplementary written submissions were directed only at the first part of the “specific fund” requirement – the existence of a reasonably identifiable fund. This question was resolved in favour of the plaintiff. [^3] It was the second part of the requirement that was not satisfied because the court concluded that the plaintiff’s claim was in essence a claim for damages. [^4] The defendants’ claim for additional costs based on the post-hearing written submissions about the existence of a “specific fund” is unfounded.

[5] As for the offer to settle, the plaintiff reminds the court, again correctly, that if a motion or action is dismissed, the defendant is not entitled to an elevated costs award from the date of its rejected Rule 49 offer absent evidence of egregious or reprehensible conduct. [^5] No such conduct has been alleged herein.

[6] I therefore agree with the plaintiff that a fair and reasonable costs award is $53,500. Costs are therefore fixed at $53,500 all-inclusive, payable forthwith by the plaintiff 3Genius to the defendants Locationary and Grant Ritchie.

Date: August 2, 2016 Belobaba J.

Footnotes

[^1]: 3Genius Corporation v. Locationary Inc., 2016 ONSC 4092. [^2]: Ibid., at para. 4. [^3]: Ibid., at paras. 4 and 14-20. [^4]: Ibid., at paras. 21-26. [^5]: Davies v. Clarington (Municipality), 2009 ONCA 722, [2009] O.J. No. 4236 (C.A.) at para. 40; Iannarella v. Corbett, 2015 ONCA 110, [2015] O.J. No. 726 (C.A.) at para. 139.