Court File and Parties

Court File No.: CV-19-00616605 Date: 20190606 Superior Court of Justice - Ontario

Re: PRODUCT PRO INDUSTRIAL SUPPLIES INC., Plaintiff And: SHEAM YEE WANG, KTS CONSULTING, 1889886 ONTARIO LTD. O/A PERSEUS GROUP, SIGNAL FLOW ELECTRIC INC., ILLUMINERIS INC., and NIAGARA INDUSTRIAL CONTROLS INC., Defendants

Before: Cavanagh J.

Counsel: Alastair J. McNish, for the Plaintiff Ruzbeh Hosseini, for the Defendants, Sheam Yee Wang and KTS Consulting

Heard: By written submissions

Costs Endorsement

[1] The plaintiff Product Pro Industrial Supplies Inc. (“Product Pro”) brought a motion for an interlocutory injunction restraining the defendant Sheam Yee Wang and the business he carries on using the trade name KTS Consulting (together, the “Wang Defendants”) from certain activities. Product Pro had obtained an interim order on March 27, 2019. This interim order was extended by order dated April 23, 2019. The motion before me was heard on April 29, 2019.

[2] On April 30, 2019 I released my decision granting interlocutory injunctive relief restraining the Wang Defendants from, directly or indirectly, soliciting customers of Product Pro, or potential customers of Product Pro with whom the Wang Defendants had been in contact on or before March 21, 2019, for a period of 12 months or until trial.

[3] This is my decision with respect to the costs of this motion.

[4] Product Pro seeks costs of the motion on a partial indemnity scale in the amount of $26,869.20 (inclusive of disbursements of $3,135.50). Product Pro also submits that this is a case where substantial indemnity costs may be warranted.

[5] I do not agree that this is a case where there has been conduct on the part of the Wang Defendants that is such as to justify an award of costs on a substantial indemnity scale. Cost should be awarded on the partial indemnity scale.

[6] The Wang Defendants submit that Product Pro is not entitled to costs because (a) Product Pro was not fully successful on the motion, (b) it raised the issue of fraud on the motion for the purpose of prejudicing the Wang Defendants, and (c) it engaged in improper conduct by circulating expired interim orders among its clients and potential clients. In the alternative, the Wang Defendants submit that only a nominal award of costs should be made.

[7] Although Product Pro did not succeed in obtaining all of the interlocutory injunctive relief that it sought, it obtained substantial relief. Having been substantially successful, Product Pro should receive its costs of the motion: Precision Fine Papers Inc. v. Durkin, 2008 CarswellOnt 3219 at para. 20.

[8] On this motion, Product Pro made allegations that the Wang Defendants had engaged in dishonest conduct in relation to the submission of rebate applications. The Wang Defendants alleged that Product Pro and its principal had engaged in the same conduct, and that the conduct was a “normal industry practice”. I did not rely upon the allegations made by Product Pro with respect to Mr. Wang’s conduct in making my order. I did not make any findings with respect to the allegations of dishonest conduct that were made. Product Pro is not disqualified from obtaining an order for costs of the motion on this basis.

[9] The Wang Defendants rely upon emails that were sent by Mr. Valle after the release of my decision in which he circulated interim orders that had been made by other judges and that had expired. This conduct occurred after my order was made, and does not affect the exercise of my discretion with respect to costs of the motion. If there are legal consequences which follow from the emails sent by Mr. Valle that are not resolved, these must be determined separately.

[10] Product Pro submitted a costs outline in support of its claim for costs. In its costs outline, Product Pro addressed the factors set out in subrule 57.01(1). I accept that this motion was important to the parties and that it involved somewhat complex factual issues and legal submissions. Although Product Pro claims damages of $1 million together with punitive damages, I am unable to determine the amount that is truly in dispute in this action, and I do not take the amount claimed into account in my assessment of the amount to be awarded for costs.

[11] The Wang Defendants also submitted a costs outline upon which they would have relied if they had been successful in opposing the motion brought by Product Pro, and their costs outline showed an amount for costs that was in the same range as the costs claimed by Product Pro (somewhat higher).

[12] I have considered the factors in subrule 57.01(1) and the amount that would be fair and reasonable for the unsuccessful parties to pay having regard to the principles in Boucher v. Public Accountants Council for the Province of Ontario, 2004 CarswellOnt 2521 (C.A.) at para. 26. I am satisfied that the amount of partial indemnity costs claimed by Product Pro is fair and reasonable for this motion.

[13] I fix costs to be paid by the Wang Defendants to Product Pro in the amount of $26,869.20 inclusive of fees, disbursements and HST. These costs are to be paid within 30 days in accordance with rule 57.03(1).

Cavanagh J. Date: June 6, 2019