Court File and Parties

COURT FILE NO.: 37/18 DATE: 2019 04 23 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Fatigue Fracture Technology, LLC, Applicant - and - Camtac Manufacturing Inc., Respondent

BEFORE: Lemon J.

COUNSEL: C.A.L. Caruana, Counsel for the Applicant K.D. Hanna, Counsel for the Respondent

HEARD: In Writing

Costs Endorsement

The Issue

[1] Fatigue Fracture Technology LLC abandoned its proceeding against Camtac Manufacturing Inc. As a result of that abandonment, Camtac sought costs of $73,119.59 with respect to the abandoned proceeding and a further $14,000 in costs for that motion, if successful. In response, FFT conceded that it should pay costs of $7,500 with respect to the abandoned proceeding. In my endorsement, I agreed with FFT’s position and ordered it to pay $7,500. I now have received submissions with respect to costs of that motion.

[2] FFT submits that it was successful and seeks costs of $3,500, to be set off against the costs as determined above. Camtac says it was successful and seeks costs of $5,000. This was the figure set out in its materials at the time of the motion however $14,000 was the oral submission.

Analysis

[3] I need not set out the principles of determining costs; they were in my earlier ruling.

[4] Both parties were arguably unsuccessful on the issue before me. FFT was required to pay costs and Camtac did not obtain the size of order that put the matter in dispute. However, the issue was not whether FFT would pay costs but what costs it should pay. In my view, FFT was successful and is entitled to costs.

[5] The parties were sufficiently far apart that any offers would not have been helpful.

[6] Given the small difference in the present submissions, both sides are within the range and would have expected to pay such costs. Camtac complains of the hours spent by counsel for FFT. Without a bill of costs from Camtac, such a submission rings hollow. I do not find the time spent by FFT to be unreasonable.

[7] Camtac’s assessment of its case was incorrect but not its conduct.

Result

[8] Applying all of the factors, I find that a fair and reasonable amount for costs of the motion to be the sum of $3500 payable from Camtac to FFT. Such amount shall be set off against my order in the main motion.

Justice G.D. Lemon Date: April 23, 2019