MDG Newmarket Inc. v. Home Trust Company, 2017 ONSC 4768
Court File No. CV-17-11850-00CL
DATE: 20170808
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
MDG NEWMARKET INC. c.o.b. as ONTARIO ENERGY GROUP, Plaintiff
- and -
HOME TRUST COMPANY, Defendant
BEFORE: F.L. Myers, J.
COUNSEL: Elliot Birnboim and Alastair McNish, counsel for the Plaintiff Nicholas Kluge, Brent J. Arnold, and Delna Contractor, counsel for the Defendant
READ: August 8, 2017
ENDORSEMENT
[1] The plaintiff seeks costs as a result of the defendant withdrawing its motion for an interlocutory injunction. The defendant did not succeed in a request to obtain interim injunctive relief pending the hearing of the interlocutory injunction. It seems apparent that after suffering the unsuccessful interim outcome, the defendant determined that it was unlikely to succeed on the main interlocutory motion. It therefore cut its losses by abandoning the motion. That is a responsible approach that avoids needless cost and allows the action to proceed more efficiently.
[2] There is nothing reprehensible in the abandonment of a motion that was reasonably brought.
[3] The plaintiff seeks its costs on a substantial indemnity basis because it made an offer to settle the motion that it says it beat due to the abandonment of the motion. Under Rule 49, unlike a moving party (who can be analogized to a plaintiff at trial), a responding party (analogized to the positon of a defendant at trial) is not automatically entitled to substantial indemnity costs on beating an offer. The positions of plaintiffs and defendants (and hence moving parties and respondents) differ under Rule 49. As the rule does not provide a presumption of enhanced costs for a respondent (as it does where a plaintiff beats an offer), the entitlement to enhanced cost requires proof that the other side engaged in reprehensible conduct. As noted above, there was none here.
[4] In light of the abandonment, it is reasonable for the defendant to pay costs to the plaintiff on a partial indemnity basis. Reviewing the parties’ Costs Outlines, I note that the plaintiff chose not to favour the court with a calculation based on a partial indemnity outcome. As the parties’ costs on a substantial indemnity basis are relatively close, I therefore use the defendant’s calculation to help determine a reasonable outcome on a partial indemnity basis. I am satisfied that a costs order of $17,500 all-in is reasonable and within the range that the defendant ought reasonably to have expected to bear abandoning as it did. Therefore, within 30 days, the defendant shall pay costs to the plaintiff on a partial indemnity basis fixed at $17,500.
F.L. Myers, J.
Date: August 8, 2017