Court File and Parties

COURT FILE NO.: CV-17-00569542

DATE: 20180827

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AZMOON TRADING INC., Plaintiff/Moving Party

AND: CAFFE DEMETRE FRANCHISING CORP., CAFFE DEMETRE (MISSISSAUGA) INC., CAFFE DEMETRE ENTERPRISES INC. and GARY STEVEN THEODORE, Defendants/Responding Parties

BEFORE: P. J. Monahan J.

COUNSEL: David S. Altshuller and Lara Di Genova, for the Plaintiff/Moving Party John H. McNair, for the Defendants/Responding Parties

HEARD: April 17, 2018

ENDORSEMENT

[1] On May 15, 2018 I dismissed the motion brought by the Plaintiff, Azmoon Trading Inc., seeking an injunction prohibiting Caffé Demetre Franchising Corp. from terminating the Plaintiff’s franchise. I found that although the Plaintiff had established that there was a serious issue to be tried, it failed to establish that it would suffer irreparable harm if the injunction were not granted, nor did the balance of convenience favour the granting of the injunction. I also found that Caffé Demetre was entitled to its costs on the motion.

[2] The parties were unable to settle the quantum of costs and Caffé Demetre has provided submissions in which it seeks recovery of its partial indemnity costs on the motion. Azmoon Trading did not make any cost submissions.

[3] In its cost submissions, Caffé Demetre notes that the parties exchanged offers to settle just prior to the hearing of the motion. Caffé Demetre was prepared to grant Azmoon Trading a new franchise agreement for the remainder of the current option term, and to waive the plaintiff’s accumulated arrears of local advertising expenditures, in return for completion of certain renovations. Caffé Demetre also sought payment of $65,000 toward costs incurred in the litigation.

[4] The Plaintiff was substantially in agreement with the Defendants’ terms, but refused to make any contribution to costs of the motion or action. In addition, Azmoon Trading sought to require Caffé Demetre to cooperate with the sale of its franchise by meeting with prospective purchasers for the purpose of approving them as franchisees. This proposal was not acceptable to Caffé Demetre.

[5] The result of bringing the injunction motion along with the Defendants’ agreement to preserve the status quo while it was being litigated was to gain the Plaintiff an additional 15 months of franchise term under its existing, more favourable franchise agreement. There is accordingly no reason why Caffé Demetre should not recover all of its partial indemnity costs in the motion. I have reviewed the time spent and the rates charged and find them to be reasonable. Accordingly, I fix costs payable by Azmoon Trading to Caffé Demetre at $41,670.61 (consisting of fees of $32,397.54, disbursements of $4479.11 and HST of $4793.96). These costs are payable 30 days from today’s date.

P.J. Monahan J.

Date: August 27, 2018