Citation: Canadian Standards Association v. P.S. Knight Co. Ltd., 2016 ONSC 896
COURT FILE NO.: CV-15-526680
DATE: 20160204
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CANADIAN STANDARDS ASSOCIATION Plaintiff
– and –
P.S. KNIGHT CO. LTD. and GORDON KNIGHT Defendants
Counsel:
Wendy J. Wagner and Anastasia Semenova for the Plaintiff
Colin Baxter and Ben Grant for the Defendants
HEARD: In writing
PERELL, J.
REASONS FOR DECISION-COSTS
[1] In an action commenced in the Federal Court in 2012, Canadian Standards Association (“CSA”) sues Gordon Knight and his corporation P.S. Knight Co. Ltd. for copyright infringement and for breach of s. 7(a) of the Trade-marks Act, R.S.C. 1985, c. T-13, and s. 52 of the Competition Act, R.S.C. 1985, c. C-34.
[2] In this action in the Superior Court, CSA sues Mr. Knight and his corporation for defamation. Pursuant to rule 21.01(3)(c) of the Rules of Civil Procedure, Mr. Knight and his corporation moved for a temporary stay of the defamation action until the completion of the Federal Court action. For reasons reported as Canadian Standards Association v. P.S. Knight Co. Ltd., 2015 ONSC 7980, I dismissed Mr. Knight’s and his corporation’s motion.
[3] CSA now seeks costs of $36,432.52, all inclusive, on a substantial indemnity basis or $24,746.02, all inclusive, on a partial indemnity basis.
[4] For the reasons that follow, I award CSA costs of $21,500, all inclusive, on a partial indemnity basis.
[5] CSA submits that it is entitled to costs on a substantial basis because: (a) it put the Defendants on notice that their motion was meritless; (b) it offered to settle by consenting to a withdrawal of the motion without costs up to the date of the hearing; and (c) the Defendants persisted right up until the hearing with their argument that CSA’s actions were an abuse of process and then abandoned the argument but repeating it in a blog posting.
[6] In my opinion CSA has not justified the rare award of costs on a substantial indemnity basis. The Defendants simply lost a motion they were entitled to bring and they should pay costs in accordance with the normal guidelines where the successful party is typically entitled to costs on a partial indemnity basis.
[7] The Defendants submit that costs should be in the cause or, in the alternative, that there should be, at most, a modest costs award. The Defendants submit that costs should be in the cause because they ultimately may succeed on the merits in the action that they were unsuccessful in having stayed or dismissed. That argument, which succeeds in some cases, does not help the Defendants in the circumstances of this case because in the immediate case it would be appropriate to award costs against them even if they are ultimately successful in defending the defamation action.
[8] The Defendants also submit that costs should be in the cause because it was reasonable for them to bring their motion and because the motion was productive in providing procedural guidance in managing the actions in this court and the Federal Court. This argument does not work. The Defendants lost their motion, and while it is good to hear that their unsuccessful motion had some utility, that utility could have been achieved without the expense of an unsuccessful motion.
[9] It is fair and just that CSA receive costs on a partial indemnity basis. With respect to the quantum of costs, they are modestly too high and beyond the reasonable expectations of a litigant, even one engaged in an acrimonious intellectual property dispute and an associated defamation claim.
[10] For the above reasons, I award costs of $21,500, all inclusive, on a partial indemnity basis.
Perell, J.
Released: February 4, 2016
CITATION: Canadian Standards Association v. P.S. Knight Co. Ltd., 2016 ONSC 896
COURT FILE NO.: CV-15-526680
DATE: 20160204
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CANADIAN STANDARDS ASSOCIATION Plaintiff
– and –
P.S. KNIGHT CO. LTD. and GORDON KNIGHT Defendants
REASONS FOR DECISION - COSTS
PERELL J.
Released: February 4, 2016