Court File and Parties
COURT FILE NO.: 17-CV-572336CP
DATE: 20180404
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WEB OBJECTIVE, INC.
Plaintiff
– and –
SOCIALABRA, INC., STEWART DAVIS, JOSEF ZANKOWICZ, RYAN PINTO, and JEFFREY CHONG
Defendants
Counsel:
Andrew J. Morganti and Hadi Davarinia for the Plaintiff
Patrick Mazurek for the Defendant Josef Zankowicz
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
REASONS FOR DECISION - COSTS
PERELL, J.
[1] Pursuant to the Class Proceedings Act, 1992[^1] and the Ontario Securities Act,[^2] the plaintiff, Web Objective, Inc. sued SociaLabra, Inc., Stewart Davis, Josef Zankowicz, Ryan Pinto, and Jeffrey Chong for primary market misrepresentation and for breach of contract.
[2] Web Objective moved to have its claims against Messrs. Pinto and Chong dismissed and for certification of its action against the other defendants. SociaLabra and Mr. Davis consented to certification of the action.
[3] On January 18, 2018, shortly before the scheduled motion for certification, Mr. Zankowicz consented to certification with the matter of costs to be determined by the court.
[4] By decision and order dated January 29, 2018, I certified the action as a class proceeding, and I ordered the action dismissed as against Messrs. Pinto and Chong.[^3]
[5] Web Objective submitted a bill of costs for $11,189.20 plus HST on a partial indemnity basis but indicated that it would accept $10,000, plus HST for costs from Mr. Zankowicz.
[6] The claim for costs is quite reasonable and well within what an unsuccessful party on a certification motion would expect to pay to the successful party.
[7] Mr. Zankowicz’s response to Web Objective’s claim for costs was to argue that there should be no order as to costs or that costs should be in the cause.
[8] The thrust of Mr. Zankowicz’s argument is that he is not the main defendant and his albeit late arriving consent to certification did not increase the costs of a mandatory motion and, given that he denies any personal liability, the appropriate award is no order as to costs or costs in the cause.
[9] However, Mr. Zankowicz’s dithering about whether to accept Web Objective’s Offer to Settle the certification motion and the late arrival of his consent necessitated additional work and effort by Web Objective. These circumstances make it fair that he should bear some responsibility for costs in the event that he is not successful in his defence of the class proceeding.
[10] The normal rule is that the successful party on a certification motion receives costs forthwith, but in the particular circumstances of the immediate case, where the certification against the other defendants was on consent and without costs, I think the appropriate costs order is to award Web Objective costs of $10,000 plus HST in the cause against Mr. Zankowicz, who ultimately did consent to certification.
[11] Order accordingly.
Perell, J.
Released: April 4, 2018
COURT FILE NO.: 17-CV-572336CP
DATE: 20180404
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WEB OBJECTIVE, INC.
Plaintiff
– and –
SOCIALABRA, INC., STEWART DAVIS, JOSEF ZANKOWICZ, RYAN PINTO, and JEFFREY CHONG
Defendants
REASONS FOR DECISION - COSTS
PERELL J.
Released: April 4, 2018
[^1]: S.O. 1992, c. 6. [^2]: R.S.O. 1990, c. S.5. [^3]: Web Objective, Inc. v. SociaLabra, Inc., 2018 ONSC 664.