COURT FILE NO.: CV-17-576255
COURT FILE NO.: CV-19-630016
DATE: 2021/02/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1939163 ONTARIO LIMITED and PAUL GREENHOW
Plaintiffs
-and-
JASMINE GREENHOW
Defendant
Darryl T. Mann and Jennifer L. Siemon for the Defendant Jasmine Greenhow
AND BETWEEN:
GREENHOW HOLDINGS INC.
Plaintiff
-and-
1939163 ONTARIO LIMITED
Defendant
Douglas Christie for Paul Greenhow and Greenhow Holdings Inc.
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] This is a costs decision in a nasty corporate dispute between in-laws. They are suing each other in two actions: (1) Action No. CV-17-576255 (the “2017 Action”); and (2) Action No. CV-19-630016 (the “2019 Action”).
[2] In the 2017 Action, the Plaintiffs are: (1) Paul Greenhow; and (2) 1939163 Ontario Limited (“the Amalgamated Corp.”). In the 2017 Action, the Defendant is cousin-in-law Jasmine Greenhow. In the 2017 Action, Paul Greenhow sues for an oppression remedy, and he brings a derivative action on behalf of the Amalgamated Corp. In the 2019 Action, the Plaintiff is Greenhow Holdings Inc. (“Greenhow Holdings”), which is Paul Greenhow’s corporation. The Defendant in the 2019 Action is the Amalgamated Corp.
[3] Jasmine Greenhow brought a motion to have the 2019 Action stayed as an abuse of process, and to allow the 2017 Action to proceed. On the motion, the position of Paul Greenhow and the Amalgamated Corp. was that Jasmine Greenhow’s motion should be dismissed and that the 2019 Action should be given prominence and proceed first.
[4] I made the following order: (a) in the 2017 Action, the derivative claim shall be struck out without leave to amend; (b) in the 2017 Action, the claim and the counterclaim shall be struck in their entirety with leave to amend; (c) in the 2019 Action, the Statement of Claim shall be struck in its entirety with leave to amend; (d) the 2017 Action and the 2019 Action shall be consolidated into the 2017/2019 Consolidated Action; (e) in the 2017/2019 Consolidated Action, the Plaintiffs shall be Paul Greenhow and Greenhow Holdings and the Defendants shall be Jasmine Greenhow and the Amalgamated Corp; (f) in the 2017/2019 Consolidated Action, the Plaintiffs shall have twenty days from the release of these Reasons for Decision to serve and file a Statement of Claim, failing which the 2017 Action, the 2019 Action, and the 2017/2019 Consolidated Action shall be deemed to have been discontinued with costs to be determined by motion to the court; (g) in the 2017/2019 Consolidated Action, if the Plaintiffs deliver a Statement of Claim, the Defendants may not be noted in default until after twenty days from the service of the Statement of Claim; (h) in the 2017/2019 Consolidated Action, Paul Greenhow and Greenhow Holdings may be represented by Rubin & Christie LLP or by such other law firm as they may retain save and except Beard Winter LLP; and (i) Beard Winter LLP is disqualified from acting as lawyer of record in the 2017 Action and in the 2017/2019 Consolidated Action.[^1]
[5] While Jasmine Greenhow did not obtain all of the relief that she was seeking, at the end of day, it can be said that she was the genuinely successful party. Although she was under the gun of being noted in default, it was her initiative that led to a procedural Order that may now get this litigation off the sidetrack rails, where it had derailed, and back on track.
[6] Jasmine Greenhow asks for costs awarded on a substantial indemnity basis in the sum of $81,631.35, plus H.S.T. of $10,612.08 and disbursements in the amount of $1,693.54 for a total award of $93,936.97.
[7] In addition to the factors that Jasmine Greenhow was the successful party and that it was salutatory that she took the initiative to bring the procedural motion, Jasmine Greenhow asks for costs on a substantial indemnity basis based on the factors that: (a) she delivered a Rule 49 offer to settle the motion for which there was no response; (b) I made several findings about Paul Greenhow’s absence of good faith; and (c) Paul Greenhow’s counsel was not co-operative in attempting to resolve the procedural problems and protested the scheduling of case management; (d) expenses were increased by unnecessary issues introduced by Paul Greenhow and his corporations; and (e) Paul Greenhow caused his company to commence the 2019 Action to assert claims that should have been brought in the 2017 action.
[8] In not particularly helpful responding costs submissions, Paul Greenhow and Greenhow Holdings Inc. submitted not much more than that it was appropriate to make costs in the cause of the consolidated action and that the costs claimed by Jasmine Greenhow were excessive.
[9] In my opinion, the costs slate should be cleared, and the consolidated action should be a fresh starting point. Costs should be assessed in accordance with the normal principles for the assessment of costs.
[10] In the immediate case, I am not persuaded that it is appropriate to award costs on a substantial indemnity basis. Therefore, applying the normal principles, I conclude that Jasmine Greenhow should recover costs on a partial indemnity basis for the motion. I assess those costs on a partial indemnity basis to be $70,000, all inclusive, payable forthwith jointly and severally by Paul Greenhow and Greenhow Holdings Inc.
[11] Order accordingly.
Perell, J.
Released: February 4, 2021
COURT FILE NO.: CV-17-576255
COURT FILE NO.: CV-19-630016
DATE: 2021/02/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1939163 ONTARIO LIMITED and PAUL GREENHOW
Plaintiffs
- and -
JASMINE GREENHOW
Defendant
AND BETWEEN:
GREENHOW HOLDINGS INC.
Plaintiff
-and-
1939163 ONTARIO LIMITED
Defendant
REASONS FOR DECISION - COSTS
PERELL J.
Released: February 4, 2021
[^1]: 1939163 Ontario Limited v. Greenhow, 2020 ONSC 8152.