2016 ONSC 5262 COURT FILE NO.: CV-08-10757CM DATE: 20160826

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: 2105582 Ontario Ltd. o/a Performance Plus Golf Academy and 627496 Ontario Ltd. o/a D & D Electric, Plaintiffs – and – 375445 Ontario Limited o/a Hydeaway Golf Club and Nicholas Panasiuk, Jr., also known as Nick Panasiuk, Defendants

Counsel: Owen D. Thomas, for the Plaintiffs Nick Panasiuk, acting in person and on behalf of 375445 Ontario Limited o/a Hydeaway Golf Club

AND BETWEEN:

375445 Ontario Limited o/a Hydeaway Golf Club and Nicholas Panasiuk, Jr., also known as Nick Panasiuk, Plaintiffs by Counterclaim – and – 2105582 Ontario Ltd. o/a Performance Plus Golf Academy, 627496 Ontario Ltd. o/a D & D Electric and David Forcellini, Defendants by Counterclaim

Counsel for Counterclaim: Nick Panasiuk, acting in person and on behalf of 375445 Ontario Limited o/a Hydeaway Golf Club Owen D. Thomas, for the Defendants by Counterclaim

HEARD: Written submissions

REASONS ON COSTS

Patterson j.:

[ 1 ] In my reasons, I determined that the defendants had improperly distrained fixtures of the tenant and improperly used them for a period of eight years resulting in an award of in excess of $100,000, plus $80,000 for exemplary damages for illegal use. The issue was that after termination, the landlord cannot distrain the trade fixtures of the tenant.

[ 2 ] That being said, this action had a protracted life lasting over many years and there was significant work and effort putting the document book together which, fortunately, at trial the defendants agreed to admit. I have examined the dockets and I agree with the defendants’ submission that the case of Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291, [2004] O.J. No. 2634 is important in a costs analysis that any costs awarded should be fair and reasonable. The plaintiffs allege that approximately $120,000 to $140,000 is owing for costs and the defendants suggest the range of costs should be $75,000 to $80,000.

[ 3 ] I agree that the law as given by the plaintiffs was straightforward and the proposition regarding trade fixtures and the right to distrain not being permitted after termination of a lease is well known. That being said, significant amount of time was required by plaintiffs’ counsel including the preparation of the document book. Ultimately, as part of the trial, the defendants acknowledged that if they were in error that he had no right to distrain. He did not challenge the amount of the claim. In addition to that, I dealt with a request for exemplary damages for the illegal use of the plaintiffs’ trade fixtures for an eight-year period and awarded $80,000.

[ 4 ] I have determined that an amount that is fair and reasonable is $95,000, plus HST and disbursements of $10,491.42.

[ 5 ] This dollar amount is reflective that the partial indemnity scale is being applied to the offer dated August 11, 2015, and substantial indemnity costs thereafter.

“original signed and released by Patterson J. ”

Terrence L.J. Patterson Justice

Released: August 26, 2016

2016 ONSC 5262 COURT FILE NO.: CV-08-10757CM DATE: 20160826

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: 2105582 Ontario Ltd. o/a Performance Plus Golf Academy and 627496 Ontario Ltd. o/a D & D Electric Plaintiffs – and – 375445 Ontario Limited o/a Hydeaway Golf Club and Nicholas Panasiuk, Jr., also known as Nick Panasiuk Defendants REASONS ON COSTS Patterson J.

Released: August 26, 2016