Superior Court of Justice - Ontario

CITATION: Downtown Kids Academy Inc. v. Zakrzewski, 2017 ONSC 5965

COURT FILE NO.: CV-17-579906

DATE: 2017-10-05

RE: Downtown Kids Academy Inc.

AND:

Saida Rachel Zakrzewski

BEFORE: P. J. Monahan J.

COUNSEL: Lorne Sabsay, for the Applicant Daniel Lublin and Simone Ostrowski, for the Respondent

HEARD: August 23, 2017

COSTS ENDORSEMENT

[1] On August 25, 2017 I dismissed an application by Downtown Kids Academy Inc. (“DTKA”) for an interim injunction sought against a former employee, Saida Rachel Zakrzewski (“Zakrzewski”), with costs. The parties were unable to agree on the quantum of costs and each has made detailed costs submissions in writing.

[2] Counsel for Zakrzewski argues that an elevated award of costs, on either a substantial or full indemnity basis, is appropriate in the present circumstances. It is suggested that elevated costs are warranted where a party engages in behavior worthy of sanction. Counsel argues that DTKA’s application was without merit and was brought solely to intimidate and bully Zakrzewski. It is further argued that elevated costs awards are more readily available given the extraordinary nature of an interim injunction and the attendant intensity and urgency of work required to respond on short notice.

[3] Counsel for DTKA argues that the application raised a serious issue and denies that it was intended to intimidate Zakrzewski. Counsel for DTKA further argues that counsel for Zakrzewski improperly relied upon privileged communications, mischaracterized or misstated correspondence from DTKA, as well as a number of other concerns.

[4] I have carefully considered the costs submissions of both parties, as well as the factors enumerated in Rule 57, including the result achieved, the time spent, whether the issues raised were complex, and the principle of proportionality. I have also considered the principle set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario,[^1] that the overall objective in fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.

[5] DTKA’s application, while unsuccessful, was not frivolous; nor do I regard the conduct of either counsel to have been inappropriate in the circumstances of the case. Thus I do not believe that an elevated costs order is warranted. In my view, taking into account all the relevant circumstances and considerations, an appropriate award of costs on a partial indemnity basis is $12,500, all inclusive.

P. J. Monahan J.

Date: October 5, 2017

[^1]: (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).