Court File and Parties
COURT FILE NO.: CV-19-81185 DATE: 2020/04/17
COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE
RE: 1760465 ONTARIO LTD. o/a MAINTNANCE REPAIR SERVICES, Plaintiff AND: 5010520 ONTARIO INC. o/a CLEAR CHOICE CONTRACTING, DSG CONTRACTING INC., NOJO INDUSTRIES INC., NOAH JOHN APSIMON, NORMAN J. SARGEANT, ERIC HARVEY, and THANH PHAM a.k.a. THANH THI PHAM, Defendants
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Geoffrey Cullwick & Mario Torres, for the Plaintiff Stacey R. Ball & Sean J. O’Donnell, for the defendants Apsimon, Pham, Clear Choice and DSG Paul Champ & Christine Johnson, for the defendant Harvey Brent Craswell & J.P. Zubec, for the defendants Sargeant and Nojo Industries
HEARD: In writing
COSTS AWARD
[1] I have received written submissions in relation to the costs of the motion for an injunction that was dismissed by me, with reasons, released on November 13th, 2019. (2019 ONSC 6573). As set out in paragraphs 4, 11 and 12, I held that the three-part test as set out in RJR MacDonald was not met.
[2] The plaintiffs argue that costs should be in the cause because, as I observed in paragraph 14 of the decision, refusal of an injunction is not a finding that the action is without merit. It remains entirely possible that the plaintiff will succeed in the litigation. In addition, there is a counterclaim which has some of the hallmarks of “tit for tat” litigation. It is possible that even if the plaintiff is unsuccessful in the litigation, the counterclaim may also fail.
[3] Ontario operates under a presumptive “pay as you go” costs regime. Rule 57.03 states that unless the court is satisfied that a different order would be more just, on the hearing of a contested motion, the court is to fix the costs of the motion and order them to be paid within 30 days. It is sometimes the case that despite bringing an unsuccessful motion, it would be unjust to follow this rule and costs in the cause or in any event of the cause would be more appropriate. One might envision a situation where a plaintiff has a very strong case and is almost certainly entitled to damages and is of limited means. A costs award in that case, particularly if the motion was reasonably brought and efficiently argued, might result in injustice if it blocked the prosecution of a meritorious action.
[4] That is not the case here. This is not a case that appears to be frivolous or devoid of merit, but it is a case in which there are certain evidentiary difficulties and burdens that the plaintiff must overcome to establish liability or damages. There is no evidence that the plaintiff is impecunious or that justice would be thwarted if the ordinary costs consequences are imposed.
[5] It is unfortunate that the plaintiff has sued numerous individuals besides the principal defendant and also sought injunctive relief against those parties. The motion thus involved four sets of counsel and the plaintiff is liable for three sets of costs.
[6] Despite the colourful language used by counsel for the defendant who described the motion as an “abject failure” and the bringing of the motion as “reprehensible conduct”, I do not view this as a case for substantial indemnity costs. There are significant differences between this case and the Forbes case cited as authority for such an award. In particular, the motion itself was not marked by improper tactics, suggesting it was an abuse of process.
[7] The fact is that the defendant was a senior employee of the plaintiff. He has actively sought out customers of the plaintiff and offered the very same services he was previously providing on the plaintiff’s behalf. He may or may not be within his legal rights to do so. If he was wrongfully dismissed, his actions may not only be lawful but entirely justified. But I do not regard the case as frivolous nor the motion seeking an injunction as “malfeasance” for the sole purpose of persecuting and disadvantaging the defendants.
[8] This is not to say that the plaintiff or his counsel behaved in exemplary fashion. They did put the motion on a regular list by grossly underestimating the time needed to argue the motion. They did serve prolix and lengthy materials. They did bring the motion on relatively short notice.
[9] The result of opposing counsel having to “scramble to respond to the motion on a truncated schedule” is that considerable time had to be devoted to this matter in a short period of time. The costs incurred by all parties in dealing with this matter have been significant. On the other hand, the affidavit material and the supporting documents that were assembled should save some costs at the discovery stage.
[10] I have reviewed the costs outlines. In light of the factors discussed above, and the significant consequences that would have followed for the clients if injunctive relief was granted, the time spent appears reasonable. Similarly, the involvement of more than one lawyer is justified and was probably necessary to respond to the motion in the manner it was brought.
[11] I fix the costs payable by the plaintiff to the defendants ApSimon, Clear Choice, Pham and DSG at $28,000.00 on a partial indemnity scale inclusive of fees, disbursements and HST.
[12] Similarly, and on the same basis, I fix the costs of the defendants Sargant and Nojo at $11,000.00 and the costs payable to the defendant Harvey at $5,000.00 on the same basis.
[13] I am not prepared to award costs of the costs’ submissions. Except in extraordinary circumstances, arguing costs is part of the normal process of a contested motion. Although counsel were invited to agree on the question of costs and failed to do so, this does not justify a further round of costs arguments or a separate award.
[14] I would normally have made the costs payable within 30 days but due to the current economic circumstances and cash flow limitations imposed by the COVID 19 health crisis, I will extend the time to July 15th, 2020. The costs are to be paid prior to that date.
Mr. Justice C. MacLeod
Date: April 17, 2020
1760465 Ontario Ltd. v. 5010520 Ontario Inc., 2020 ONSC 2375
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: 1760465 ONTARIO LTD. o/a MAINTNANCE REPAIR SERVICES, Plaintiff AND: 5010520 ONTARIO INC. o/a CLEAR CHOICE CONTRACTING, DSG CONTRACTING INC., NOJO INDUSTRIES INC., NOAH JOHN APSIMON, NORMAN J. SARGEANT, ERIC HARVEY, and THANH PHAM a.k.a. THANH THI PHAM, Defendants
COSTS AWARD
Mr. Justice Calum MacLeod
Released: April 17, 2020