Trade Capital Finance Corp v. Cook, 2017 ONSC 3605

Court File and Parties

COURT FILE NO.: CV-15-2110-00 DATE: 2017 06 09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TRADE CAPITAL FINANCE CORP. Plaintiff

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PETER COOK also known as PETER WILLIAM COOK, MARC D’AOUST also known as JEAN MARC D’AOUST, THOMAS BARKER also known as THOMAS RICHARD BARKER (personally and carrying on business as LC EXCHANGE, GLOBAL MEDICAL and GREENLINK CANADA GROUP), ROCKY RACCA, BRUNO DIDIOMEDE also known as BRUNO DIAIOMEDE, ALAN KEERY also known as ALAN JOHN KEERY, CHRIS BENNETT JR. also known as CHRIS BENNETT also known as CHRISTOPHER BENNETT (personally and carrying on business as CJR CONSULTING), TODD CADENHEAD, DAYAWANSA WICKRAMASINGHE, BONNY LOKUGE also known as DON BONNY LOKUGE, VIRTUCALL INC., VIRTUCALL INTERNATIONAL LLC, DEBT RESOLVE-MORTGAGE FUNDING SOLUTIONS INC. carrying on business as DEBTRESOLVE INC., THE CASH HOUSE INC., 1160376 ONTARIO LIMITED operating as THE CASH HOUSE, 2242116 ONTARIO INC. carrying on business as SUPERIOR MEDICAL SERVICES INC. and SUPERIOR MEDICAL SERVICES, CARLO MR. DE MARIA also known as CARLO VINCE DE MARIA also known as CARLO VINCENT MR. DE MARIA also known as CARLO VINCENZO MR. DE MARIA, MATTEO PENNACCHIO, FRANK ZITO also known as FRANCESCO ZITO, SIMONE SLADKOWSKI, JOBEC TRADE FINANCE INC., 1461350 ONTARIO INC., 2299430 ONTARIO INC., WF CANADA LTD., JOBEC INVESTMENTS RT LTD., GREEN LINK CANADA INC., 2339989 ONTARIO INC., 2252364 ONTARIO INC., 2224754 ONTARIO LTD., 6980023 CANADA INC. operating as LIVING BENEFITS and MILLWALK ENTERPRISES INC., OAK HILLS WATER DURHAM INC., JOSHUA COOK, ELIZABETH COOK, REBECCA COOK, MARK PINTUCCI, MARCO SANTONATO also known as MARC SANTONATO and NEW ERA RESOLUTIONS & CONSULTING INC. Defendants

BEFORE: EMERY J.

COUNSEL: Peter W. G. Carey and Christopher R. Lee, for the Plaintiff Laura Robinson, for the Defendant The Cash House Inc. Martin Sclisizzi, for the non-party Maple Trust Company

COSTS ENDORSEMENT (Maple Trust Motion)

1Maple Trust Company (“Maple Trust”) claims its costs as the non-party who was successful on its motion to vary a Mareva order for the reasons given in my endorsement released on May 8, 2017. Maple Trust seeks $18,000 for those costs on a partial indemnity basis, inclusive of $655.50 for taxable and non-taxable disbursements, and applicable HST. This claim for costs has already been reduced from fees of $24,354 docketed on a partial scale, plus disbursements and taxes.

2The Plaintiff Trade Capital Finance Corp. submits that, as both parties acknowledge the motion involved a novel point of law, there should be no costs awarded. In the alternative, Trade Capital submits that any costs award should be greatly reduced for the same reason.

3In Baldwin v. Daubney, it was held that the court may take into account that a novel point of law was involved on the motion as a factor when deciding costs. However, in Bagelow v. Smith, 2011 ONSC 6382, the court reaffirmed that costs are in the discretion of the motions judge. Instead of awarding no costs, an award of costs at a reduced level would acknowledge that the issue was novel, and yet partially indemnify the successful party in an appropriate way.

4The issued decided on the motion before this court was a novel one. However, there were authorities argued on the motion that suggested the direction in which the law was developing: see CIBC v. Credit Valley Institute of Business and Technology, [2003] O.J. No. 40 and Aetna Financial Services v. Feigleman, [1985] 1 S.C.R. 2. Trade Capital may be entitled to a reduction of the costs it has to pay, but is not excused from liability for those costs entirely.

5In Bagelow v. Smith, the court awarded 50% of the costs claimed in similar circumstances to recognize that the legal question was novel, and would assist in the general development of the law. I conclude the same approach would have been appropriate.

6Maple Trust has already reduced the amount meant to represent the time recorded on the dockets of its law firm. I am prepared to award reduced costs based on the actual time recorded, instead of half the amount claimed. To order otherwise would cost Maple Trust a double reduction.

7I am also of the view that awarding costs in this manner would be fair and reasonable to each of the parties to the motion: Boucher v. Public Accountants Council of Ontario.

8I therefore award $12,000 for fees, plus disbursements of $655 and HST, for a total of $14,215 to Maple Trust for the costs of the motion.

Emery J.