COURT FILE NO.: CV-15-11093-000CL
DATE: 20191219
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ENCANSOL CAPITAL CORPORATION, DOUGLAS WAYNE HARTFORD, BONITA HARTFORD, and D.W. HARTFORD & ASSOCIATES INC.
Plaintiffs/Responding Parties
– and –
OCTOPUS TECHNOLOGIES INC., FRANK BOROWICZ, THEODORE HENNIG, KATHLEEN HENNIG, and 1398081 ALBERTA LTD.
Defendants/Moving Parties
Jason Squire, for the Plaintiffs/Responding Parties
Steve J. Tenai and Vedran Simkic, for the Defendants/Moving Parties
HEARD: September 19, 2019
REASONS FOR DECISION
DIETRICH J.
Overview
[1] The defendants bring a motion for summary judgment seeking an enforcement of a settlement agreement. The plaintiffs oppose the motion and the enforcement of the agreement based on alleged misrepresentations made by the defendants at the time the parties made the agreement.
[2] The defendants signed the agreement in May 2014, and the written agreement was made retroactive to reflect another agreement alleged to have been made by the parties on February 14, 2014 (the “Settlement Agreement”). The defendants assert that the Settlement Agreement settles all claims arising out of a series of restructuring transactions underlying the plaintiffs’ action in which the plaintiffs allege oppressive conduct. The defendants also seek to have the plaintiffs’ action dismissed in its entirety, or, alternatively, in part.
[3] If the action is not dismissed in its entirety, the defendants move: a) to have the claims of the plaintiff Encansol Capital Corporation (“ECC”) and its principal, the plaintiff Douglas Wayne Hartford (“Hartford”) dismissed on the basis that ECC approved the restructuring transactions and is therefore estopped from challenging them as oppressive; and because Hartford was neither a shareholder of the Defendant Octopus Technologies Inc. (“OTI”) (or its predecessor Hybrid Energy Technologies Inc.), nor its parent ECC and therefore has no standing to bring an oppression claim; b) to have the plaintiffs’ claim for damages for purported advances made to OTI dismissed based on a lack of evidence; and c) to have the action against the defendant Kathleen Hennig dismissed on the basis that no facts have been pleaded against her disclosing a cause of action against her personally.
[4] The plaintiffs assert that the restructuring transactions were unilaterally implemented by the defendants and had the effect of significantly diluting the plaintiffs’ interests in the defendant corporations. They further assert that the defendants failed to disclose material information and made material misrepresentations to the plaintiffs regarding the Settlement Agreement. They also assert that the consideration for entering into the Settlement Agreement included a licence to certain patents, sometimes referred to as "XL patents", for batteries known as cylindrical battery technology. The plaintiffs assert that ownership of the licence to these patents was critical to their future business and was their motivation for entering into the Settlement Agreement. They had plans to develop the cylindrical battery technology.
[5] In the Settlement Agreement, the licence to these XL patents was not included in the property to which the plaintiffs were entitled. The XL patents were listed on Schedule B to the Settlement Agreement, together with certain base patents, the latter of which ECC was granted a licence. However, a licence to use the XL patents could not be granted by the defendants, because the subsidiary of OTI that was granting the licence to the plaintiffs pursuant to the Settlement Agreement no longer owned the XL patents. The XL patents had once been owned by a subsidiary of OTI but were subject to a floating charge. When that company went into receivership, the XL patents were sold. The new owner of the XL patents is shown on Schedule B of the Settlement Agreement. The plaintiffs argue that the defendants misrepresented the terms of the Settlement Agreement. They further argue that the Settlement Agreement is unconscionable and unenforceable and does not absolve the defendants of the oppressive effects of the restructuring that underpin the plaintiffs’ claim.
[6] Prior to this motion, the defendants required the plaintiffs to convert their application into an action to enable full discovery of the dispute. Following the conversion, the parties spent more than a year negotiating terms for the discovery process, but were unsuccessful. As a result, no discoveries have been held.
[7] Though it may be possible for the court to make some findings of fact based on the record in support of this motion, it is evident that the relevant factual matrix surrounding the Settlement Agreement is complex and cannot be fully apprehended based on the record before the court. For this reason and the reasons that follow, I find that the defendants’ motion is premature. Accordingly, the motion for summary judgment is dismissed. Partial summary judgment is not appropriate in this case.
Position of the Parties
[8] The plaintiffs assert that their attack on the Settlement Agreement raises complex issues of fact and law that will require findings of credibility. They submit that the necessary facts should not and cannot be found on this motion for summary judgment. They further assert that the credibility of the parties and key witnesses should be assessed at a trial, or at a minimum, through examinations for discovery.
[9] The defendants assert that the plaintiffs who are parties to the Settlement Agreement had independent legal advice and freely entered into the contract. They further assert that the Settlement Agreement is enforceable and the court should enforce it. In their view, there is no genuine issue requiring a trial.
The Evidence
[10] The nature and extent of the evidence before the court is relevant to the issue of whether the facts can be justly determined on this motion. The defendants have sworn affidavits in support of their motion in the normal course of a summary judgment motion. They offer their accounts of the restructuring transactions and the making of the Settlement Agreement. However, there has been no discovery and therefore no transcripts of the examinations for discovery. Even if there were transcripts of the examinations for discovery, pursuant to rule 31.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), the defendants would only be permitted to read into evidence an opposite party’s examination for discovery at a trial.
[11] There is no affidavit evidence from the defendant Frank Borowicz, yet it is alleged that he was the lawyer involved in the drafting of the Settlement Agreement.
The History of the Restructuring
[12] The Hartford plaintiffs founded OTI, formerly Hybrid Energy Technologies Inc., in 2007 and entered a battery market known as flat plate technology. They purchased a licence of exclusive use of flat plate technology, including all related patents and other intellectual property to develop and commercialize this technology.
[13] They transferred the intellectual property to OTI in exchange for all of its outstanding shares.
[14] ECC was created in early 2009 and came to own 94% of OTI, the latter which held the battery licences and patents, some of which were owned through OTI's subsidiaries. Between them, Hartford and his spouse, Bonita Hartford, (collectively, the “Hartfords”) owned all of the shares in ECC.
[15] Hartford's consulting company, D.W. Hartford & Associates Inc. (“Hartford Co.”) offered consulting services to OTI through ECC. Hartford Co. claims to have made $100,000 in advances to OTI, $57,865 of which the plaintiffs assert remains outstanding and owing by OTI.
[16] The plaintiffs allege that the defendants Mr. Borowicz and Theodore Hennig (“Hennig”) have been systematically edging the plaintiffs out of the venture, including through the 2013 corporate restructuring that separated ECC from its most significant assets, that being their ownership of OTI and the intellectual property OTI controls. The restructuring reduced the Hartfords’ effective ownership in OTI from approximately 47% to 15% and increased the defendants’ interest from approximately 17% to 47%. In its statement of defence, the defendants admit that the restructuring was done to eliminate any influence or control that ECC had over OTI so that OTI could achieve success for its shareholders.
[17] The plaintiffs allege that the defendants’ conduct was oppressive. The plaintiffs submit that they were asked to approve the restructuring retroactively, and they assert that when they raised issues of concern, they were threatened with lawsuits. Ultimately, they signed the Settlement Agreement.
[18] The plaintiffs’ evidence is that Hennig was aware that Hartford's desire to exploit the cylindrical battery technology was very important to him, and that Hennig reported this to the board of OTI. The record shows that Hennig advised the OTI board that the Hartfords were content to give up some of the equity in OTI in exchange for Hartford’s ability to exploit the cylindrical battery technology, which, according to the record, OTI had no desire to pursue.
[19] Under the Settlement Agreement, ECC had a royalty-free, perpetual and irrevocable licence to manufacture and sell cylindrical technology batteries and to continue to use trademarks and product names historically associated with these types of batteries. ECC did receive the base patents listed on Schedule B to the Settlement Agreement, but it did not receive the XL patents that were no longer owned by OTI or any related company. The defendants assert that the Settlement Agreement specifically provided that ECC would have a licence to use the “Base Patent IP Portfolio” set out in Schedule B, but the base patents did not include the XL patents, because the XL patents were not base patents. They were improvements to the base patents. Further, the defendants assert that, pursuant to the Settlement Agreement, the licence was granted on a “quit claim basis, as is where is” and that OTI made no representations and warranties regarding title.
[20] The XL patents are critical to the cylindrical battery business that ECC wishes to pursue. Accordingly, the plaintiffs allege that the Settlement Agreement confirmed that OTI, through a subsidiary, would grant ECC the cylindrical battery licence it required (i.e. the XL patents) in compliance with another agreement that OTI made on February 14, 2014. The plaintiffs assert that it was implicit in the representations made by Hennig and OTI in the ongoing negotiations, in the agreement made on February 14, 2014, and in the Settlement Agreement, that OTI would and could grant ECC the cylindrical battery technology it wished to exploit.
[21] The defendants assert that the Settlement Agreement does not state that OTI would license the XL patents to ECC. Rather, the chart appended to the Settlement Agreement specifically shows that the XL patents were owned by a subsidiary company other than the grantor of the licences and were subject to a security charge.
[22] OTI asserts that it could not grant a licence to the complete package of patents that would allow Hartford and ECC to pursue the cylindrical battery business, because OTI did not own all the necessary patents. The related XL patents were subject to a floating charge and were sold as part of a receivership sale involving a related insolvent company. Accordingly, the defendants assert that the Hartfords must have known that some of the relevant patents, including the XL patents, were not included among the OTI assets they would receive.
[23] Hartford asserts that he could not have known that the XL patents were not included in the licence, because at the time of the negotiations he had no “insider” information, as he was no longer an officer of the company. He asserts that he relied on the knowledge of the OTI officers regarding its ownership in the patents. Hartford also asserts that Hennig acknowledged to him that Hennig knew the cylindrical battery technology licence could not have been included in the Settlement Agreement, but has refused to address the matter further.
[24] Unbeknownst to the Hartfords, OTI had made an unsuccessful bid to re-acquire the XL patents from the receiver. The attempted purchase was made during the negotiation of the Settlement Agreement. For these reasons, and others, the plaintiffs assert that the Settlement Agreement is unconscionable.
Credibility
[25] Negotiations between Hennig and Hartford were complex and fraught, involving accusations of bad faith. Hartford submits that this matter can only be resolved with the benefit of evidence from several witnesses.
[26] The defendants assert that Hartford had independent legal advice from a lawyer, Josh Arbuckle, throughout the negotiation process, but Hartford disagrees. He submits that Mr. Arbuckle was a company lawyer for both ECC and OTI prior to the restructuring and continued to advise OTI after Hartford learned of the restructuring. Hartford further submits that Mr. Arbuckle’s function was limited to providing advice on corporate governance issues.
[27] The parties dispute whether Hartford knew that the defendants did not own the XL patents at the time the Settlement Agreement was made.
Law and Analysis
A. Summary Judgment
[28] The defendants move for summary judgment under rule 20 of the Rules. Rule 20.04(2) provides that summary judgment shall be granted if the Court is satisfied that there is no genuine issue requiring a trial with respect to, on this motion, the plaintiffs’ claim.
[29] As set out in Hryniak v. Mauldin, 2014 SCC 7, at para. 49, there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process. This will be the case when the process: (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[30] On a motion for summary judgment, I must first determine if there is a genuine issue requiring a trial based only on the evidence before me, without using the fact-finding powers in subrule 20.04(2.1). If there appears to be a genuine issue requiring a trial, rule 20.04(2.1) permits me, per my discretion, to: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the “interest of justice” for these powers to be exercised only at trial: Hryniak, at para. 66.
[31] The responding parties may not rely on the prospect of additional evidence that may be tendered at trial. They must put their best foot forward on the motion for summary judgment or risk a judgment against them: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26, aff’d 2014 ONCA 878, leave to appeal to SCC refused, [2015] S.C.C.A. No. 97.
[32] The defendants submit that the enforceability of the Settlement Agreement is not an issue requiring a trial, because the plaintiffs agreed to settle all claims in relation to the restructuring transactions underlying their action and the terms of the Settlement Agreement have been satisfied. Accordingly, the Settlement Agreement should be enforced in accordance with the principles of contract law. In this assertion, they rely on Olivieri v. Sherman, 2007 ONCA 491, at para. 41.
[33] The plaintiffs assert that the Settlement Agreement should not be enforced, because OTI misrepresented its ownership of the XL patents relating to cylindrical battery technology to the detriment of the plaintiffs. They further assert that the Settlement Agreement is unconscionable, and they entered into it under duress and undue influence. The plaintiffs submit that OTI knew that the XL patents were so important to ECC’s ability to pursue the cylindrical battery business that the plaintiffs were prepared to forgo some of their equity in OTI in exchange for the opportunity to pursue that business.
[34] The defendants assert that there was no misrepresentation with respect to OTI granting ECC the licence and patents for cylindrical battery technology as provided in the Settlement Agreement. They submit that the Settlement Agreement specifically provides that the licensor only grants any interest it has without warranting any ownership in any particular patent and that the buyer assumes the risk that there is no good title. Further, they submit that the Settlement Agreement expressly states that ECC is responsible for assessing and evaluating the licensed technology and the intellectual property, and that OTI expressly disclaims all representations and warranties in this regard, including title. They also submit that the Settlement Agreement is silent about licensing the XL patents, which were described in the Settlement Agreement as being held by a separate company from the licensor and subject to a security interest.
[35] On the subject of unconscionability, the plaintiffs allege that the Settlement Agreement is improvident and should not be enforced owing to the inequality in bargaining and informational power. As examples, they cite the dilution of the plaintiff’s interests in OTI without their knowledge; the defendants representations and misrepresentations to induce the plaintiffs into executing the Settlement Agreement; the failure of consideration relating to the licence to the XL patents and other consideration; the power imbalance resulting in a long history of marginalizing the plaintiffs in management (e.g., the restructuring had already occurred when the plaintiffs were presented with the draft Settlement Agreement) the defendants’ failure to provide the Hartfords, as shareholders, with progress reports or to call meetings; and Hartford’s lack of legal advice from Mr. Arbuckle.
[36] The plaintiffs assert the defendants' exercised undue influence. There was the potential for exploitation in the business relationship and the retroactive Settlement Agreement was unfair to the plaintiffs. The plaintiffs allege the following factors to support their claim of undue influence, including: the defendants' history of marginalizing the plaintiffs created the circumstances that allowed them to effect the restructuring; the plaintiffs’ alleged vulnerability because they were at risk of losing their past significant contributions to OTI as founders, and they were desperate to salvage value; the defendants’ alleged aggressive threats of litigation against the plaintiffs; misrepresentations about the cylindrical battery technology in that the defendants were aware that the plaintiffs were relying on the defendants’ superior knowledge of the OTI intellectual property portfolio; and the defendants knew of the plaintiffs’ plan to exploit the cylindrical battery technology which was essential to the plaintiffs' business going forward.
[37] On the subject of duress, the plaintiffs assert that the defendants inappropriately applied pressure on them. They allege that the defendants contributed to the plaintiffs’ financial constraints by depriving ECC of value so that it could not pay its debts to Hartford Co. for consulting services that had benefitted OTI; they marginalized the Hartfords in the management of OTI; and they threatened them to agree to the Settlement Agreement.
[38] The defendants submit that any argument about unconscionability, undue influence or duress is untenable to enforcing the Settlement Agreement, because Hartford initiated the settlement discussions that led to the Settlement Agreement; he had legal advice from Mr. Arbuckle throughout the settlement negotiations; the settlement discussions stretched out over four months during which concessions were made for the Plaintiffs; Hartford threatened litigation in the course of the negotiations but, ultimately, voluntarily chose to settle the dispute arising out of the restructuring.
[39] It is obvious that the views of the parties with respect to the negotiations that led to the Settlement Agreement and the factual matrix in which those negotiations took place are divergent. There are numerous factual and legal issues in dispute. Among others, the record raises a genuine issue pertaining to whether the plaintiffs could have reasonably expected to have received a licence for the cylindrical battery technology (including the XL patents) as part of the settlement. I find that the record before me is insufficient to permit me to make the necessary findings of fact and to assess the credibility of the parties in a way that would lead to a fair and just determination of the issues arising out of the making of the Settlement Agreement and the enforcement of it.
[40] The plaintiffs’ cause of action alleges a scheme of misrepresentation perpetuated by the defendants, which induced the plaintiffs to sign the Settlement Agreement. In addition, the plaintiffs submit that the discovery and trial evidence on the issues of misrepresentation, unconscionability, undue influence and duress are necessary, because these matters have a complex history and require a detailed factual inquiry. I agree.
[41] The Settlement Agreement should not be found enforceable on this summary judgment motion. Even a bare interpretation of the Settlement Agreement requires an evidence-driven, contextual analysis. For example, OTI purports to disclaim all representations and warranties regarding the licensed technology. However, the plaintiffs allege that this provision cannot absolve the defendants from the explicit or implicit representation that OTI could grant the licence for the cylindrical battery technology. Further the plaintiffs assert that the Settlement Agreement states that OTI is granting a licence to “manufacture and sell cylindrical format batteries” with an unlimited right to sub-licence. The evidence on these points and the effect of Schedule B to the Settlement Agreement is contested and issues of credibility will need to be assessed by the trier of fact.
[42] I agree with the plaintiffs’ submission that the court should not grant summary judgment without discovery evidence. In Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, the Ontario Court of Appeal warned of the dangers of embarking on a summary judgment motion prior to discoveries. It is well understood that, on a summary judgment motion, the parties are required to “put their best foot forward.” In Combined Air, at para. 57, the Court of Appeal added a caveat to the principle in cases where a motion for summary judgment is brought early in the litigation:
It will not be in the interest of justice to exercise rule 20.04(2.1) powers in cases where the nature and complexity of the issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion. In such a case, forcing a responding party to build a record through affidavits and cross-examination will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.
[43] In George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001, Brown J., as he then was, identified several factors to take into account when considering whether to schedule a summary judgment motion pre-discovery. In reviewing these factors, I am persuaded that a discovery would be of assistance in this case. The factual matrix relating to the Settlement Agreement is complex; the record offers a less complete picture of the case than the plaintiffs could present at trial; the plaintiffs would enjoy greater access to key documents through the discovery process; the most efficient means of developing a record capable of satisfying the full appreciation test (later described by the Supreme Court of Canada as the “genuine issue for trial” test) given the nature and complexity of the issues in play is to proceed through the normal discovery route - the parties should finalize and implement the discovery plan they began to develop prior to this motion.
[44] Full disclosure of documentary evidence is necessary for a party to properly respond to a motion for summary judgment and often important evidence is only in the moving party’s possession: York Regional Standard Condominium Corporation No. 1206 Steeles Developments Inc., 2018 ONSC 3766, at para. 67.
[45] An incomplete record prevents the court from being able to make the necessary factual findings, rendering the summary judgment premature and prejudicial to the fact-finding process. This was found to be the case when a motion for summary judgment was brought before the parties had completed documentary productions: FFO Fiberglass v. Distribution Composites, 2019 ONSC 4291, at paras. 14 and 15. While some of the events giving rise to the plaintiffs’ action can be ascertained on the evidence before me, there are also significant gaps in the evidence that could be filled through the discovery process.
[46] I am satisfied that a meaningful evidentiary record, as would be achieved through the discovery process at a minimum, is necessary for the court to properly determine the enforceability of the Settlement Agreement. In the case at bar, the circumstances surrounding the entering into the Settlement Agreement will be relevant to what was in the specific contemplation of the parties and to the Settlement Agreement's enforceability. The defendants have acknowledged the disputed facts and complex factual matrix in this case. In the correspondence between the parties relating to the proper procedure the plaintiffs would follow in pursuing their allegations, the defendants admitted that “there are a number of issues in dispute, not the least of which is [Hartford’s] knowledge”; and that the plaintiffs’ “allegations include a substantial number of disputed material facts and credibility issues … Given the material factual and credibility issues in dispute, this matter should not be litigated by way of an application but instead as an action …” Counsel for the plaintiff had drafted a discovery plan, which was negotiated between the parties and resulted in the identification of no less than 70 sub-issues.
[47] On the ability to properly assess credibility on a summary judgment motion, in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, at para. 44, Lauwers J.A. warned of the dangers inherent in relying on a paper record on a summary judgment motion, much of which is curated by counsel:
Evidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice. This makes the motion judge’s task of assessing credibility and reliability especially difficult in a summary judgment mini trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all.
[48] Numerous credibility issues are raised. I find that I am not able to adequately weigh them on the record before me. The resolution of the credibility issues would benefit from discovery and viva voce evidence at trial.
[49] This summary judgment motion does not provide the evidence required to fairly adjudicate the genuine issues identified. The factual matrix and the credibility of the individuals involved in the restructuring transactions cannot be fairly and justly determined on this motion. The court should not be tasked with attempting to interpret a Settlement Agreement without a full appreciation of the underlying oppression claim. In my view, it cannot be said at this stage of the proceedings that the plaintiffs’ claim is bound to fail on the law. It is simply not possible to adjudicate this matter without full discovery and a trial. As noted by the Supreme Court in Hryniak, at para. 57, on a summary judgment motion, the evidence need not be equivalent to that at trial, but the evidence must be such that the judge is “confident that she can fairly resolve the dispute.” I am not confident that the documents in the evidentiary record reveal the factual matrix surrounding the making of the Settlement Agreement and the evidence of all material witnesses.
B. Partial Summary Judgment
[50] Regarding the alternative relief, the defendants seek partial summary judgment resulting in an order dismissing the claims of ECC and Hartford on the basis that ECC participated in and approved the restructuring transaction and is therefore estopped; and on the basis that Hartford was neither a shareholder of OTI nor its parent ECC and he, therefore, has no standing to bring an oppression claim. They also seek an order dismissing the plaintiffs’ claim for damages for purported advances made to OTI for the payment of obligations because of a lack of evidence, and an order dismissing the action against Kathleen Hennig because no cause of action was pleaded against her.
[51] In Butera v. Chown, Cairns LLP, 2017 ONCA 783, the Ontario Court of Appeal considered the appropriateness of motions for summary judgment that will determine some of the issues but not dispose of the action as a whole. The Court of Appeal cautioned that a partial summary judgment motion should be considered a rare procedure reserved for issues that can be easily bifurcated from the main action and that can be dealt with expeditiously and in a cost-effective manner: at para. 34.
[52] As I have noted, the record on this motion is not as expansive as it would be at a trial that follows examinations for discovery. A determination of some or all of these issues at this hearing could increase the risk of inconsistent findings of fact. Summary judgment must be considered in the context of the litigation as a whole.
[53] I find that a determination of these issues on a partial summary judgment basis would be premature. Whether ECC truly approved the restructuring remains a disputed issue. Without the benefit of examinations for discovery, the plaintiffs may not be in a position to “put their best foot forward” on this motion and adduce all of the available evidence in support of their claim for damages and to demonstrate the extent of the benefit that they allege Ms. Hennig received from the restructuring. Accordingly, I decline to award any of the alternative relief sought.
Disposition and Costs
[54] The motion for summary judgment is dismissed. The plaintiffs shall be entitled to their costs. The plaintiffs submitted a Costs Outline for costs of the motion only, in respect of which they seek $17,537.50 inclusive of disbursements, plus HST, on a partial indemnity basis. The defendants submitted a Bill of Costs that covers all of their costs, from the preparation of their statement of defence to the hearing of this motion. Accordingly, the fees that they would have sought, if successful on their motion, are considerably higher. They also had two counsel in attendance at the hearing, whereas the plaintiffs had one. The defendants’ Bill of Costs is helpfully broken down by task, and their costs for this motion are $33,934.50, not including disbursements and HST. Their costs are approximately twice what the plaintiffs are seeking.
[55] Taking into account the complexity of the proceeding, the importance of the issues (a summary judgment motion that could dispose of the litigation), the experience level of counsel, the hours spent and the rates charged, I fix the plaintiffs’ costs at $17,537.50, inclusive of disbursements, plus HST on the fees and disbursements. Given that these costs are about one-half of the costs that the defendants would have sought on the motion alone, on a partial indemnity basis, had they succeeded, I find them to be, in the expectation of the defendants, fair and reasonable.
Dietrich J.
Released: December 19, 2019
COURT FILE NO.: CV-15-11093-000CL
DATE: 20191219
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ENCANSOL CAPITAL CORPORATION, DOUGLAS WAYNE HARTFORD, BONITA HARTFORD, and D.W. HARTFORD & ASSOCIATES INC.
Plaintiffs/Responding Parties
– and –
OCTOPUS TECHNOLOGIES INC., FRANK BOROWICZ, THEODORE HENNIG, KATHLEEN HENNIG, and 1398081 ALBERTA LTD.
Defendants/Moving Parties
REASONS FOR DECISION
Dietrich J.
Released: December 19, 2019