Court File and Parties

COURT FILE NO.: CV-19-620554

DATE: 2019-12-17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2558701 ONTARIO INC. OPERATING AS RIPPLE PROJECTS, Plaintiff

AND:

DAVID LEE, JENNIFER O’BRIEN and THE TORONTO-DOMINION BANK, Defendants

BEFORE: Schabas J.

COUNSEL: Molly Luu, Counsel, for the Plaintiff

Ryan Hauk, Counsel, for the Defendants Lee and O’Brien

HEARD: November 13, 2019

COSTS ENDORSEMENT

[1] On November 14, 2019, I released an endorsement dealing with a motion brought by the plaintiff. I granted certain relief on consent and dismissed the motion for other relief which had been sought by the plaintiff: 2558701 Ontario Inc. o/a Ripple Projects v. Lee et al., 2019 ONSC 6587. I invited written submissions on costs.

[2] The defendants submit that they were successful on the motion and seek costs of approximately $9,500 on a partial indemnity basis. The plaintiff argues that success was divided, noting that the defendants’ consent to some of the relief only came about because of the motion, and that the consent came at the “eleventh hour”. The plaintiff also submits that it made reasonable offers to settle which ought to have been accepted by the defendants. On quantum, the plaintiff’s bill of costs is somewhat less, at approximately $7,700, and the plaintiff takes issue with some of the amounts claimed by the defendants.

[3] The parties are engaged in what appears to be a rather bitter and costly dispute. Both sides have taken positions for tactical reasons, and this motion was no exception. Even the costs submissions have been vigourous and, no doubt, costly. The case is, however, headed to mediation on December 18, and hopefully a resolution can be achieved without further resort to the courts or to what may be an expensive arbitration.

[4] The Court has, of course, a broad discretion when determining the issue of costs. Rule 57.01(1) sets out factors to be considered to achieve a result that is fair and reasonable for the unsuccessful party to pay: Boucher v. Public Accountants Counsel for Ontario, 2004 14579 (ON CA), 2004 14579 (Ont. C.A.).

[5] In this case, while the defendants were successful on the issues remaining in dispute, the plaintiff did obtain some relief as a result of bringing the motion. Further, the plaintiff made some effort to settle the remaining issues albeit somewhat late and with limitations. The defendants were not required to pay money into court, but in my view it is not fair and reasonable to require the plaintiff to pay the defendants costs, having regard to the mixed success and the broader context of this.

[6] Accordingly, I make no order as to costs.

Schabas J.

Date: 2019-12-17