Court File and Parties

COURT FILE NO.: CV-19-81579

DATE: 2021-08-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 1951584 ONTARIO INC, Plaintiff

AND:

ANTRANIK KECHICHIAN and OPTICAL VISION OF CANADA LTD., Defendants

AND:

ESSILOR GROUPE CANADA INC., 9109862 CANADA INC., 9346-3495 QUEBEC INC., 9346-3503 QUEBEC INC., GESTION ERIC SAVARD INC. and ERIC SAVARD, Third Parties

BEFORE: Mew J.

COUNSEL: John Russo, for the plaintiff Antranik Kechichian, unrepresented Gary G. Boyd, for Kaufman LLP Chad Pilkington, for the third parties, Essilor Groupe Canada Inc. and 9109862 Canada Inc.

HEARD: in writing

COSTS ENDORSEMENT

[1] The plaintiff in this case was entirely successful in its motion for summary judgment, obtaining a monetary award of approximately $936,000 as well as judgment for possession of a number of condominium units. My endorsement of 19 May 2021 is reported at 2021 ONSC 3617.

[2] My endorsement provided that I was presumptively of the view that the plaintiff is entitled to its costs of this motion and of the action, but that if the parties could not agree on costs, I would receive their submissions on costs. I have subsequently received the plaintiff’s costs submissions. No submissions have been received from the defendants.

[3] The plaintiff relies on the terms of its loan agreements with the defendants which provide that costs associated with enforcement proceedings will be paid by the defendants on a substantial indemnity basis.

[4] I refer to my costs endorsement in a companion motion, bearing Court File No. CV-17-72986 (2021 ONSC 5381), for a statement of the general principles applicable when parties have made an agreement relating to the scale of costs to be paid.

[5] Suffice it to say, that the court retains a discretion with respect to the amount and scale of costs to be awarded, notwithstanding what the parties may have agreed to.

[6] The plaintiff seeks costs on a substantial indemnity basis of $45,733.98 (inclusive of H.S.T. and disbursements). On a partial indemnity basis, the plaintiff would seek costs of $31,634.73.

[7] Even on a substantial indemnity basis, the amount sought by the plaintiff is proportionate to the overall value of its claim and the judgment obtained. Only three fee earners worked on the file so there are no concerns about duplication of effort.

[8] In those circumstances, I see no reason not to respect the provisions of the loan documents relating to costs.

[9] Costs are therefore fixed in the all-inclusive amount of $45,733.98.

Mew J.

Date: 09 August 2021