Court File and Parties

COURT FILE NO.: CV-20-00000-256-0000 DATE: 2021-09-07 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Giao Consultants Ltd., Plaintiff AND: 7779534 Canada Inc., CIV Carbon Credit Ltd., Maxime Lemieux, McMillan S.E.N.C.R.L., Osvaldo Minchella, Adriana Shaw also known as Adriana Rios Garcia, Martin Nicoletti, David Grondin, Defendants

BEFORE: Regional Senior Justice Edwards

COUNSEL: Alexander G. Munera / Brent A. Mendiola, Counsel for the Plaintiff Sara J. Erskine, Counsel for the Defendants, 7779534 Canada Inc., Adriana Shaw, Martin Nicoletti and David Grondin

HEARD: In-Writing

Endorsement

COSTS ON MOTION

[1] The plaintiff served a motion to strike the Statement of Defence of the defendant 7779534 Canada Inc., Adriana Shaw also known as Adriana Rios Garcia, Martin Nicoletti and David Grondin (collectively referred as “the defendant”) on the basis of the defendant’s nonpayment of a number of cost awards. The total of the outstanding cost awards was $25,700. As a result of the nonpayment of these cost awards, the plaintiff served a motion on the defendant seeking an order striking the statement of defence. Essentially, on the eve of the hearing of that motion, the defendant agreed to terms of settlement leaving the only outstanding issue being the issue of the costs of the motion.

[2] The plaintiff has submitted a bill of costs seeking costs on a substantial indemnity basis in the amount of approximately $15,000 and on a partial indemnity basis approximately $10,000.

[3] The defendant has filed written submissions suggesting that there is no basis for an award of substantial indemnity costs and suggests that an appropriate award of costs should be in the range of $2500 to $3500.

[4] In fixing costs, the court must always consider what the losing party might reasonably have expected to pay in costs. In this case, I note that the plaintiff offered to resolve the issue of costs on payment by the defendant of $7000. The defendant must have understood that the pursuit of this motion would result in the incurring of what can only be described as unnecessary costs particularly given the fact that the defendant had chosen not to pay at least three outstanding cost awards totaling approximately $26,000.

[5] In fixing costs, the court must ensure that the costs are fair and reasonable and proportionate to the issues at stake. I have reviewed the plaintiff’s bill of costs and note the hours expended by an articling student. No one would dispute that articling students need to be exposed to these types of motions but given the relative complexity of this matter I find that the hours expended are not reasonable.

[6] This motion, in my view, was an unnecessary motion and could easily have been avoided if the defendant had complied with its obligations to pay the cost award made not only by other judges of this court but also by the Court of Appeal. The defendant had an opportunity to resolve this matter by paying the suggested figure of $7000. In my view, the appropriate cost award reflecting the principles that I am required to apply is $6000 inclusive of HST and disbursements. Had I been of the mindset that the appropriate cost award was in excess of $7000, the defendant would have been exposed to an award of costs on a substantial indemnity basis. The offer made by the plaintiff was a reasonable offer that might have resulted in a compromise. The defendant is therefore ordered to pay costs fixed in the amount of $6000 which costs are to be paid within 30 days.

Regional Senior Justice Edwards

Date: September 7, 2021