Court File and Parties

COURT FILE NO.: CV-15-527848 DATE: 20181128 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Solea International BVBA, Plaintiff AND: Bassett & Walker International Inc., Defendant

BEFORE: Pollak J.

COUNSEL: Assunta Mazzotta and Timothy Law, for the Plaintiff Atrisha Lewis, for the Defendant

HEARD: July 3, 2018 with written submissions on July 27, 2018

COSTS ENDORSEMENT

[1] I have reviewed the submissions of both parties with respect to costs and have considered the factors set out in the Rules and in the case of Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.).

[2] On this motion for summary judgment, the Plaintiff was the successful party. I accept the argument of the Plaintiff that its costs should be awarded to be paid by the Defendant.

[3] There were two hearings before this Court with respect to the motions for summary judgment brought by the parties in the above-noted action.

[4] The Court of Appeal directed this Court to hear the motion applying relevant legislation which had not previously been referred to by the parties.

[5] The Court heard the motions for summary judgment, applying the relevant legislation as directed by the Court of Appeal. At the rehearing, the Court awarded Solea judgment against BWI in the amount of $228,604.50 U.S. with pre-judgment and post judgment interest of 8% per annum from the date of the delivery of the shrimp.

[6] The Parties have now submitted cost submissions with respect to this second hearing.

[7] Solea relies on an offer to settle dated May 19, 2015 and one dated March 9, 2016. On the basis of those offers of settlement it argues that it is entitled to costs on a substantial indemnity basis throughout, from the date of its first offer May 19, 2015.

[8] It submits that at the first hearing the parties agreed that substantial indemnity costs of $35,500 were reasonable and with respect to the second hearing that partial indemnity costs of $11,000 were reasonable.

[9] The parties did not, however, agree on the amount of substantial indemnity costs that were reasonable with respect to the second hearing. Solea submits that $15,500 are the appropriate substantial indemnity costs for the second hearing. BWI however disputes this amount as being inflated.

[10] However, BWI also argues that because Solea’s offer was for the full amount of the claim, that costs should not be awarded on a substantial indemnity basis as there was no “offer of compromise”.

[11] I disagree and find that the presence of the offer from the beginning of the litigation is a relevant factor. Solea is, in my view, entitled to rely on its offers. I find that it is just in the circumstances of this case, and having consideration to the factors set out in the Rules and in the Boucher case to award Solea costs on a substantial indemnity basis from the date of its offer on May 19, 2016.

[12] As an alternate argument, BWI submits that the amount of substantial indemnity costs should be calculated for the second hearing by applying the same percentage increase, namely 18%, as it was agreed to in the first hearing. There was, however, no agreement by the parties with respect to the manner in which substantial indemnity would be calculated in comparison to partial indemnity with respect to the second hearing. I therefore find it is proper in this case to apply the normal premium of 1/3 to the amount of partial indemnity costs of $11,000 that was agreed to by the parties.

[13] To conclude, I award to Solea costs of $35,500 for the first hearing and the amount of $11,000 plus 30% to be awarded to Solea for the second hearing.

[14] As the issue of the applicable interest was not addressed in argument during the hearing of the motion this matter will not be addressed in these cost submissions as requested by Solea.

Pollak J. Date: November 28, 2018