4381840 Canada Inc. v. Charron, Langlois LLP et al., 2017 ONSC 5189

CITATION: 4381840 Canada Inc. v. Charron, Langlois LLP et al., 2017 ONSC 5189

COURT FILE NO.: 16-71040

DATE: 2017/08/31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

4381840 Canada Inc.

Plaintiff

– and –

Charron Langlois LLP/S.R.L., Société Professionnelle Langlois Professional Corporation, Stéphane Langlois (alias Joseph Stéphane Langlois, alias Stéphane Joseph Langlois), Pierre Charron (alias Joseph Pierre Charron, alias Pierre Joseph Charron), and Charron Pilon Sauvé LLP/S.R.L.

Defendants

Yannik S. Guilbault, Stéphane Hutt, Counsel for the plaintiff/respondent

Craig Bater, Counsel for the plaintiff/respondent in Court File No. 17-72697

Stephen Cavanagh, Counsel for the defendants/moving parties Langlois

Colin Dubeau, Counsel for the defendants/moving parties Charron and Pilon

Martin Z. Black, Counsel for the defendant 2158390 Ontario Inc. cob Boston Pizza in Court File No. 17-72697

Mathieu Demilly, Counsel for Denise Scaglione in Court File No. 16-71054

David B. Debenham, Counsel for Richard and Nancy Charette in Court File No. 16-71015

Jason Shelley, Counsel for Patrice Houle in Court File No. 16-71203

2030616 ONTARIO INC.

Marie-Josée Gauthier

Brad Phillips, Counsel for LawPro

HEARD: August 18, 2017

COSTS ENDORSEMENT

Justice P.E. ROGER

[1] This follows my earlier decision consolidating 37 Superior Court actions and 10 Small Claims Court actions.

[2] The plaintiff, 4381840 Canada Inc., had resisted the motions brought by the two groups of lawyers primarily involved as defendants who asked the Court that: (1) the 38 actions before the Ottawa Superior Court should be consolidated into one action, and (2) the 10 actions before the L’Orignal Small Claims Court should also be consolidated with the 38 Ottawa Superior Court actions.

[3] The moving parties were largely successful on the motion against the plaintiff with the exception that I did not order the consolidation of action number 17-72697 with the other actions. As a result, the plaintiff was only successful in action number 17-72697, as was the defendant who also opposed that motion in action number 17-72697.

[4] The moving parties suggested that there should be no costs for this motion or, alternatively, that they should be entitled to the part of the costs relating to their success. The plaintiff was successful in action number 17-72697 and asked for its cost as did the defendant, Boston Pizza, in action number 17-72697. The unsuccessful plaintiff argued its letter dated August 16, 2017.

[5] In a letter transmitted on August 16, 2017, the plaintiff had offered to settle this motion on terms that are not significantly dissimilar from the order ultimately made by this Court. Although the plaintiff’s offer does not propose consolidation, it provides that only one defence would be filed by the lawyers primarily involved as defendants, that the 37 Superior Court actions would be case managed, that the next steps in the 37 Superior Court actions would be determined at a future date by the case management judge, that the 10 Small Claims Court actions would be transferred to the Ottawa Small Claims Court, and that the 10 Small Claims Court actions would be stayed pending further order of that Court. Consolidation is an important and significant difference with this offer. Nonetheless, the offer was a step in the right direction and reflects favourably upon the plaintiff.

[6] The factors to be considered when fixing costs are set out in rule 57 of the Rules of Civil Procedure. They include, in addition to success, the complexity and importance of the matter, any unreasonable conduct, any offer, the principle of indemnity, the principle of proportionality, and the amount that a losing party would reasonably expect to pay.

[7] In this case, success was divided. The plaintiff was primarily unsuccessful since consolidation was ordered for 37 of the Superior Court actions and for the 10 Small Claims Court actions; however, the plaintiff was successful in resisting the motion in action number 17-72697.

[8] The plaintiff, in action number 17-72697, seeks partial indemnity costs of about $15,000 (if I increase the appearance fees as requested orally when costs were argued) against the defendant, Langlois and the defendants, Charron and Pilon. The defendant, Boston Pizza, in action number 17-72697 seeks partial indemnity costs of approximately $5,500 (if I increase the appearance fees as requested orally when costs were argued).

[9] On the other hand, the defendant, Langlois, seeks partial indemnity costs of $7,446.69 while the defendants, Charron and Pilon, seek partial indemnity costs of $7,616.19.

[10] Considering:

• the divided success (the plaintiff was successful in one action but not in the others);

• the plaintiff’s offer described above which was a serious attempt at finding a practical solution; and

• the amounts sought by the plaintiff in action number 17-72697 compared to the amounts sought the successful lawyers defendants in the other actions;

what seems just and fair is to order the defendant, Langlois, to pay $3,750 to the plaintiff and the defendants, Charron and Pilon, to pay $3,750 to the plaintiff, for a total of $7,500 to the plaintiff for the costs of these motions payable within the next 30 days.

[11] With regards to the defendant, Boston Pizza, in action number 17-72697, it was successful and should be entitled to its costs. The amount sought is reasonable, proportionate and quite within the reasonable expectations of the defendants. Consequently, the defendant, Langlois, and the defendants, Charron and Pilon, shall pay to this defendant its costs of this motion fixed in the all-inclusive amount of $5,522.91.

Justice Pierre E. Roger

Released: 2017/08/31

COURT FILE NO.: 16-71040

DATE: 2017/08/31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

4381840 Canada Inc.

Plaintiff

– and –

Charron Langlois LLP/S.R.L., Société Professionnelle Langlois Professional Corporation, Stéphane Langlois (alias Joseph Stéphane Langlois, alias Stéphane Joseph Langlois), Pierre Charron (alias Joseph Pierre Charron, alias Pierre Joseph Charron), and Charron Pilon Sauvé LLP/S.R.L.

Defendants

COSTS ENDORSEMENT

Roger J.

Released: 2017/08/31