Court File and Parties

COURT FILE NO.: CV-18-00597979-0000 DATE: 20200327

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: EVERTZ TECHNOLOGIES LIMITED AND EVERTZ MICROSYSTEMS LIMITED, Plaintiffs AND: LAWO AG, LAWO HOLDINGS AG, LAWO INC., LAWO GROUP USA, INC., LAWO CORP., PROVIDIUS CORP., TONY ZARE (a/k/a ANTONY ZAREZADEQAN), AYMAN AL KHATIB, JACKSON WIEGMAN, and ALBERT FAUST, Defendants

BEFORE: Cavanagh J.

COUNSEL: Kyle R. Taylor and Annie (Qurrat-ul-ain) Tayyab for the Plaintiffs Martin Brandsma for the Defendants Providius Corp., Tony Zare, Ayman Al Khatib and Jackson Wiegman Laurent Massam for the Defendants Lawo AG, Lawo Holding AG, Lawo Inc., Lawo Group USA, Inc., Lawo Corp. and Albert Faust

HEARD: In Writing

COSTS ENDORSEMENT

[1] In this action, there are two sets of defendants represented by separate counsel. The defendants jointly moved for an order striking out the plaintiffs’ amended statement of claim on the ground that it discloses no reasonable cause of action. The defendants sought additional relief in their notice of motion but did not pursue this relief at the hearing of the motion.

[2] The defendants’ motion was dismissed.

[3] The defendants had previously moved to strike out the statement of claim. Their motions were granted, and the statement of claim was struck out, with leave to amend. The plaintiffs delivered an amended statement of claim and the defendants jointly moved to strike out the amended statement of claim.

[4] The plaintiffs seek costs on a substantial indemnity scale in the amount of $56,613.43 or, alternatively, costs on a partial indemnity scale in the amount of $37,893.68.

[5] The plaintiffs submit that costs on a substantial indemnity scale are justified because the motion was largely duplicative of the prior motion and it had the effect of substantially delaying the prosecution of the action. The plaintiffs submit that the defendants’ motion amounts to a serial attack on the plaintiffs’ pleading and that they should be sanctioned for bringing this serial attack through an order as to costs on an elevated scale.

[6] I accept that the subject matter of this motion overlapped to a considerable extent with the subject matter of the prior motion.

[7] The defendants joint motion was in respect of a different pleading than their first motions. It does not constitute a serial attack on the same pleading. By bringing their motion, the defendants did not engage in reprehensible, scandalous or outrageous conduct which would justify an order for payment of costs on a substantial indemnity scale. Costs should be paid on a partial indemnity scale.

[8] I awarded costs of the prior motion to the defendants, the successful parties, on a partial indemnity scale. In their submissions as to costs of the prior motions, the plaintiffs asked for an order of costs in the range of $7,500 for each set of defendants. I ordered fees payable to each set of defendants fixed in the amount of $12,000.

[9] I accept that the issues on this motion were important for the parties and that the plaintiffs were successful. The legal principles that applied on this motion were the same principles that applied on the prior motion. The pleading that was the subject of the motion was different, and the arguments differed somewhat as a result. The plaintiffs were also required to prepare to address the other relief claimed by the defendants in their notice of motion for the joint motion.

[10] The plaintiffs submit that the amount they seek for costs is in line with what each set of defendants claimed for the prior motion. The plaintiffs rely on the fact that they paid costs of $30,065.85 (to two sets of defendants) on the prior motion in support of their request for costs on this motion. In my costs endorsement for the prior motion, I held that the two sets of defendants were entitled to be represented by separate counsel and declined to reduce the costs claimed for this reason, as the plaintiffs had requested.

[11] When I consider the amount that would be fair and reasonable for the unsuccessful parties to pay, and the amount that the unsuccessful parties would reasonably expect to pay, I fix fees to be paid by the defendants to the plaintiffs in the amount of $15,000. This amount is in line with the amount I awarded in favour of each set of defendants on the prior motion and takes into account that the plaintiffs were required to prepare to respond to relief claimed in the defendants’ notice of motion which was not pursued at the hearing of the motion.

[12] I fix costs to be paid by the defendants to the plaintiffs within 30 days in the amount of $17,404.18 comprised of fees of $15,000, HST on fees of $1,950, and disbursements (inclusive of HST) of $454.18.

Cavanagh J. Date: March 27, 2020