Court File and Parties

COURT FILE NO.: CV-18-598913 DATE: 20191209 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Clive Waugh, Plaintiff AND: Bentworth Outdoor Storage Inc., Hy Hershberg, Eshai Hershbert, Yaakov Kozak aka Yan Kosha, Emily J. Pinckard, D Saulnier Auto o/b D Saulnier Auto Parts & Wreckers, Defendants

BEFORE: M.A. Sanderson J.

COUNSEL: Jeffrey Radnoff, for the Plaintiff Mike Cremasco and Andrea LeDrew for the Defendants Bentworth Outdoor Storage Inc. and Hy Hershberg

HEARD: September 24, 2019

COSTS ENDORSEMENT

[1] I have now received and reviewed the submissions of the parties with respect to costs of the motion heard on September 24, 2019.

[2] For reasons set out in my endorsement released on November 8, 2019, Waugh, the moving party was unsuccessful.

[3] At the least, Waugh should pay partial indemnity costs of this motion to the successful party Bentworth.

[4] Having considered the submissions of the parties and the pertinent factors including those set out at Rule 57, I would fix partial indemnity costs of the motion at $14,000 plus HST.

[5] However, to date I am not satisfied that an order of partial indemnity costs would be appropriate or sufficient.

[6] That is because on June 3, 2016 Myers J. made it clear and ordered that before Waugh could bring any further motions in this action he must first seek and obtain the leave of this Court.

[7] If leave for this motion was not obtained from this Court, that would in my view make an award of costs on a partial indemnity scale inappropriate and insufficient. If no leave were given in my view an award of at least substantial indemnity costs would be in order.

[8] Information on whether leave to bring this motion was given by this Court is in my view necessary for me to satisfy myself that an order of partial indemnity costs is appropriate in all the circumstances here.

[9] To date, despite a specific request for information contained in my endorsement released November 8, 2019, about whether leave to bring this motion was sought and obtained from this Court, that information has not been clearly provided to me.

[10] While Counsel for the Defendant included in his costs submissions: “There is no evidence that the Plaintiff requested or was specifically given leave to bring this motion nor is there evidence that the Plaintiff advised Archibald J. of the need for leave of the Court to bring this motion", if the Defendant is relying on the absence of a leave order, I would have expected the Defendant to tender clear evidence to the effect that the Court was not advised of the requirement for leave imposed by Myers J. and that leave was not given.

[11] In his costs submissions, Counsel for Waugh does not clearly address my request for information as to whether this Court was advised of the requirement imposed by Myers J. that before Waugh could bring further motions leave of this Court must first be obtained and as to whether leave to bring this motion was given by the Court.

[12] My query remains unanswered - on or before a date for the return of this motion was leave sought by Waugh/Waugh's Counsel and a return date was given to Waugh/Waugh's Counsel for the hearing of this motion, did Waugh or his counsel advise this Court of the provision in the June 3, 2016 Order of Myers J. to the effect that before Waugh could bring any further motions in this action, Waugh first needed to obtain the leave of this Court? Was leave to bring the motion given?

[13] If the Court was not so advised, and if the motion returnable before me on September 24, 2019 was brought without the leave of this Court, partial indemnity costs would in my view be insufficient and inappropriate. In the event no leave was given I would order Waugh to pay substantial indemnity costs of $21,000 plus HST to Bentworth.

[14] I again request Counsel to satisfy my earlier request for this information so a costs order in respect of the motion may be finalized.

M.A. Sanderson J.

Date: December 9, 2019