Court File and Parties
COURT FILE NO.: CV-13-489748
DATE: 20210408
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHILL MEDIA INC.
Plaintiff
- and -
BREWERS RETAIL INC. O/A THE BEER STORE, MOLSON-COORS CANADA INC., LABATT BREWING COMPANY LTD. and SLEEMAN BREWERIES LTD.
Defendants
Counsel:
Joan Kasozi for the Plaintiff
Samantha Green for the Defendants Brewers Retail Inc. o/a The Beer Store, Molson-Coors Canada Inc., Labatt Brewing Company Ltd., and Sleeman Breweries Ltd.
HEARD: In writing
REASONS FOR DECISION - COSTS
PERELL, J.
[1] In this action, Chill Media Inc. sues Brewers Retail Inc., which operates as the Beer Store. Chill Media’s claims against the other defendants have been discontinued. Brewers Retail has a counterclaim against Chill Media. Brewers Retail brought a motion for security for costs and Chill Media brought a motion for an order varying the Order of Justice Myers to allow it to late file four experts’ reports, two of which have been served on Brewers Retail and two of which are almost ready to be served. I granted both motions subject to terms.[^1]
[2] Brewers Retail requests costs of $18,864.93 for the motion for security for costs and submits that its opposition to Chill Media’s motion should not impact its claim for costs of the security for costs motion because Chill Media was required regardless to seek leave to file its reports late. Brewers Retail’s opposition was limited to a brief argument both at the hearing and in its reply/responding factum.
[3] Chill Media submits that it was totally successful on its motion to file expert reports late despite the vehement opposition of Brewers Retail and that it was substantially successful in resisting Brewers Retail’s motion because it had sought security of costs in the amount of $352,000 but only $100,000 was awarded. Chill Media submits that, in these circumstances of divided success, it should receive partial indemnity costs of $6,339, or in the alternative it submits that costs should be awarded in the cause.
[4] I do not regard, Chill Media has being the successful party. It needs to be recalled that Chill Media was seeking an indulgence in having Justice Myer’s order varied. Brewers Retail it entitled to its costs. However, in my opinion, having regard to the principles that govern the court’s discretion in awarding costs, the appropriate award in the circumstances of the immediate case is to award Brewers Retail costs of $18,864.93 payable in any event of the cause but not forthwith.
[5] In arriving at this decision, three paragraphs carried forward from my Reasons for Decision are pertinent; namely paragraphs 42-43, and 49, which stated:
The court has the discretion to make any order for security for costs that is just in the circumstances. In exercising its discretion, the court may consider all the factors including the financial circumstances of the plaintiff or applicant, the nature of its claim, and the timing of the motion for security for costs, to order less than the amount requested by the defendant. In exercising its discretion, the court may because of the timing of the motion specify that the quantum should reflect the costs of the proceeding prospectively.
In the immediate case, in my opinion, Chill Media should have the opportunity to advance its breach of contract claim against Brewers Retail provided that it posts security for costs of $100,000.
If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Brewers Retail’s submissions within twenty days of the release of these Reasons for Decision followed by Chill Media’s submissions within a further twenty days. I alert the parties that I am at present inclined to order the costs payable to Brewers Retail in any event of the cause but not forthwith.
[6] There are always access to justice concerns when a court makes an award of costs on an interlocutory motion. In the immediate case, I carefully considered what costs should be paid by the plaintiff as the price of moving forward to prosecute its claim. Brewers Retail was the successful party on the motion for security for costs and it is entitled to costs in any event, but it would frustrate the intent of my order to make those costs payable forthwith.
[7] Brewers Retail was the successful party and its claim for costs is fair and reasonable and ought to have been within the reasonable expectations of Chill Media. Brewers Retail should have its costs of $18,864.93 in any event of the cause but not payable forthwith.
[8] Order accordingly.
Perell, J.
Released: April 8, 2021
COURT FILE NO.: CV-13-489748
DATE: 20210408
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHILL MEDIA INC.
Plaintiff
- and -
BREWERS RETAIL INC. O/A THE BEER STORE, MOLSON-COORS CANADA INC., LABATT BREWING COMPANY LTD. and SLEEMAN BREWERIES LTD.
Defendants
REASONS FOR DECISION - COSTS
PERELL J.
Released: April 8, 2021
[^1]: Chill Media Inc. v. Brewers Retail Inc., 2021 ONSC 1296