COURT FILE NO.: CV-08-354560 (Toronto)
MOTION HEARD: 2019 12 13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Arcádia Participações Ltda., plaintiff/defendant by counterclaim
and
Alexey Kondratiev and Smart Games Canada Inc., defendants/plaintiffs by counterclaim
and
Eugene Chayevsky, Adenilton Cezar Xavier, Cadillac Jack, Inc., Finstar Financial Group LLC and Tilley International & Associates Inc., carrying on business as Tilley Entertainment, defendants by counterclaim
BEFORE: MASTER R. A. MUIR
COUNSEL: Alexey Kondratiev in person and on behalf of Smart Games Canada, Inc.
Erika Anschuetz for the plaintiff and defendants by counterclaim Eugene Chayevsky, Adenilton Cezar Xavier, Finstar Financial Group LLC and Tilley International & Associates Inc., carrying on business as Tilley Entertainment
Max Shapiro for the defendant by counterclaim, Cadillac Jack, Inc.
SUPPLEMENTARY REASONS FOR DECISION - COSTS
[1] On December 13, 2019, I heard a motion brought by the defendants/plaintiffs by counterclaim. The moving parties requested an order granting leave to Mr. Kondratiev to represent the defendant corporation, as a non-lawyer. The moving parties also sought an order validating service of their affidavit of documents and productions as of June 28, 2019. None of that relief was opposed.
[2] The balance of the relief on the motion was opposed by the responding parties. The defendants/plaintiffs by counterclaim requested an order striking the statements of defence of the defendants to counterclaim Tilley International & Associates Inc., carrying on business as Tilley Entertainment (“Tilley”) and Finstar Financial Group LLC, citing irregularities with their affidavits of documents. Finally, the moving parties sought an order sanctioning the defendants to counterclaim for an alleged breach of the order of Master Brott of October 3, 2019.
[3] I released my reasons for decision on December 16, 2019. I granted the unopposed relief and also made an order that Tilley serve a sworn affidavit of documents. I dismissed the balance of the relief requested by the moving parties.
[4] I also requested written costs submissions with an ultimate deadline of February 3, 2020. Only the parties represented by Ms. Anschuetz (collectively, the “Arcádia Parties”) delivered costs submissions. I have now reviewed and considered those submissions.
[5] The Arcádia Parties were generally successful in resisting the opposed portions of the relief requested by the moving parties, with the minor exception of the Tilley affidavit of documents. They request substantial indemnity costs in the amount of $14,259.74.
[6] When dealing with the costs of a motion or other proceeding, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] OJ No. 4495 (CA) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] OJ No. 2634 (CA) at paragraph 26. In Davies v. Clarington (Municipality), 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:
Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.
[7] Apart from the operation of Rule 49.10 (offers to settle), elevated costs should only be awarded on the basis of a clear finding of reprehensible conduct. See Davies at paragraph 40.
[8] I have considered the costs submissions of the Arcádia Parties with these principles in mind.
[9] The Arcádia Parties have been largely successful and are entitled to costs, with a small reduction for the Tilley affidavit of documents issue. It is clear that these parties were required to invest a significant amount of time in responding to the various relief requested by the moving parties. It was reasonable for the Arcádia Parties to do so given the very serious nature of the relief requested by the moving parties. The costs requested appear fair and reasonable in the circumstances of this motion, especially in view of the lack of costs submissions from the moving parties. The Arcádia Parties invited the moving parties to discuss a resolution of the costs issue, but the moving parties did not respond.
[10] I am not prepared to award substantial indemnity costs. The allegations of misconduct made by the moving parties were without merit, ill-advised and irrelevant. However, I am unable to conclude that they reached the required level that would allow the court to make a clear finding of reprehensible conduct.
[11] I have therefore concluded that it is fair and reasonable for Alexey Kondratiev and Smart Games Canada Inc. to pay the partial indemnity costs of the Arcádia Parties fixed in the amount of $9,000.00, inclusive of HST and disbursements. These costs shall be paid by March 25, 2020.
[12] I have signed the draft order.
Master R. A. Muir
DATE: 2020 02 24