Court File and Parties

COURT FILE NO.: CV-15-520873 MOTION HEARD: 20210114 REASONS RELEASED: 20210205 WRITTEN COSTS SUBMISSIONS FILED: 20210223 COSTS ENDORSEMENT RELEASED: 20210526

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

SPOT COFFEE PARK PLACE INC. Plaintiff

• and-

CONCORD ADEX INVESTMENTS LIMITED Defendant

BEFORE: MASTER M.P. McGRAW

COUNSEL: G. Low Email: garth.low@garthlow.com

• Counsel for the Defendant

P. Neufeld Email: pneufeld@wagnersidlofsky.com

• Counsel for the Plaintiff

COSTS ENDORSEMENT RELEASED: May 26, 2021

Costs Endorsement

I. Introduction

[1] The Defendant brought a motion seeking an additional $46,225 in security for costs. The Plaintiff had previously been ordered to post security of $46,000 for all steps in this action including the completion of trial (the “First Order”). The motion was dismissed pursuant to Reasons For Endorsement dated February 5, 2021 (Spot Coffee Park Place Inc. v. Concord Adex Investments Limited, 2021 ONSC 978).

[2] The Plaintiff seeks costs of the motion in the amount of $13,444.76 on a substantial indemnity scale or in the alternative, $8,882.78 on a partial indemnity scale. The Defendant submits that the Plaintiff should be awarded $7,000 on a partial indemnity scale payable only if the Plaintiff is successful at trial or by way of a credit against the Defendant’s judgment if the Defendant is successful in its Counterclaim.

II. Law and Analysis

[3] Subject to the provisions of an Act or the Rules, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid (s. 131(1), Courts of Justice Act (Ontario)). In exercising this discretion, in addition to the result and any offer to settle made in writing, the court may consider the factors set out in Rule 57.01(1).

[4] The overriding principles in determining costs are fairness and reasonableness (Boucher v. Public Accountants Council for the Province of Ontario, (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)). The court should only depart from the general rule that costs on a partial indemnity scale should follow the event for very good reasons such as misconduct of the party, miscarriage in procedure or oppressive or vexatious conduct (1318706 Ontario Ltd. v. Niagara (Regional Municipality) (2005), 2005 CanLII 16071 (ON CA), 75 O.R. (3d) 405 (C.A.); 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 at paras. 10, 12-14).

[5] I am satisfied that there is no reason to depart from the general rule that the Plaintiff is entitled to costs reflective of its complete success on the motion. In my view, the primary factors in determining costs are the motion’s lack of merit and its timing. Although the Defendant sought to double the amount of security including amounts for steps already covered by the First Order, no evidence or breakdown was provided to explain how or why the original $46,000 was insufficient and if the additional amounts spent were due to the Plaintiff’s pleading amendments. The Defendant also waited to bring this motion until after all steps in the action had been completed and a 5-day trial was scheduled for March 1, 2021. The motion was essentially an unsupported request to reconsider the First Order brought on the eve of trial which added unnecessary steps and costs to this action (Rule 57.01(1)(e)).

[6] While the motion was ill-advised, I cannot conclude that the Defendant’s conduct rises to the level of abusive, reprehensible or egregious such that this is a rare and exceptional case calling for costs on a substantial indemnity scale (Dyke v. Metropolitan Toronto Condominium Corporation No. 972, 2015 ONSC 2022 at para. 10; Jansari v. Jansari, 2020 ONSC 3237 at para. 8). In my view, the Defendant’s conduct can be sufficiently accounted for in the quantum ordered and by requiring the Defendant to pay regardless of the outcome at trial.

[7] Based on the Plaintiff’s Costs Outline and considering all relevant factors, it is fair and reasonable in the circumstances and within the reasonable expectations of the parties for the Defendant to pay costs fixed in the amount of $9,000 within 30 days.

Costs Endorsement Released: May 26, 2021

Master M.P. McGraw