Court File and Parties

Court File No.: CV-20-00641412-0000 Date: 2022-01-04 Superior Court of Justice - Ontario

Re: 385277 Ontario Ltd., Plaintiff And: Jeffrey Gold et al., Defendants

Before: C. J. Brown J.

Counsel: Kevin Sherkin, for the Plaintiff Elliot Berlin, for the Defendants

Heard: September 3, 2021, costs submissions in writing

Costs Endorsement

[1] The plaintiff, 385277 Ontario Ltd., seeks its costs incurred on this contempt motion, in which it was found that the defendants were in contempt of the Interim Order of Akbarali J. dated May 10, 2021 and the Interlocutory Order of Myers J. dated July 2, 2021. The defendants have not made submissions regarding costs, which they were to have done by December 29, 2021.

[2] In general, costs are intended to compensate the successful party, in whole or in part, for its costs incurred in a proceeding. In general, costs are awarded on a partial indemnity basis.

[3] Pursuant to the Courts of Justice Act, RSO 1990, c. C.43, s.131 and the Rules of Civil Procedure, RRO 1990, Reg. 194, R. 57.01, this Court has wide discretion in awarding costs.

[4] Costs must be fair and reasonable and within the expectations of the parties. Boucher v Public Accountants Counsel for the Province of Ontario, [2004] O.J. No. 2634, 71 O.R.(3d) 291 (Ont. C.A.).

[5] As regards the factors set forth at Rule 57.01, to be considered in exercising my discretion to fix costs, I make the following comments:

Importance: The matter was of significant importance to the plaintiff. The defendants were found to have breached the provisions of their lease agreement with the plaintiff, and to have continuously engaged in online harassment of the plaintiff landlord. The defendants were found to have engaged in crude, vulgar, derogatory, defamatory and harassing videos.

Complexity: The issues themselves were not complex. However, the materials presented at court on this contempt motion were voluminous. It is the position of the plaintiff that they were required to undertake significant work in order to prepare all of the materials for the contempt motion, including the transcriptions of all videos posted by the defendants.

Experience of Counsel: The lead counsel representing the plaintiff had approximately 34 years of experience. Significant portions of the work were undertaken by two younger associates, who had been called to the bar for six and two years, respectively, as well as a law clerk and a student-at-law.

Hours spent: In reviewing the breakdown of fees charged by the various lawyers, the law clerk and student-at-law, working on the file, I am satisfied that the work was appropriately delegated to and divided among the associates, student-at-law and law clerk. There also appeared to be little or no duplication or overlap of work done.

Expectations and Proportionality: There had been two previous motions in this matter, prior to the contempt motion, and costs had been awarded on the Interlocutory Order. Despite the clear Orders of both Akbarali J. and Myers J., and the costs award granted by Myers J., the defendants continued to knowingly defy and breach the Court Orders. The defendants knew or ought to have known that the continued defiance of Court Orders would result in a contempt motion and costs consequences. I am of the view, having reviewed the costs of the plaintiff, that the amounts sought for costs are reasonable and proportionate.

Conduct of the parties/improper or unnecessary steps: The defendants have acknowledged the existence of the Orders which they continue to defy and breach. Had they complied with the two Court Orders, they would have obviated the necessity of this contempt motion. However, while it has been found that they were well aware of and acknowledged the previous Court Orders, they continued to wilfully breach them.

Denial or refusal to admit things that should have been admitted: While the defendants acknowledged and admitted that the Interim and Interlocutory Orders were in place, they nevertheless wilfully refused to adhere to and respect the Orders. As a result of their conduct and refusal, the plaintiff brought this contempt motion.

[6] Costs generally follow the event. Costs are intended to compensate the successful party or parties to the litigation, wholly or in part, for legal expenses that the party or parties have incurred. In general, costs are awarded on a partial indemnity basis. However, elevated costs or substantial indemnity costs are awarded, inter alia, where there is a finding of reprehensible, scandalous or outrageous conduct on the part of the party against which the costs award is being made: Mars Canada Inc. v Bemco Cash & Carry Inc., 2018 ONCA 239, paras 43-44; Toronto Star Newspaper v Fraleigh, [2011] O.J. No. 3689, 2011 ONCA 555; Davies v Clarington (Municipality), [2009] O.J. No. 4236, 2009 ONCA 722 (C.A.); Walker v Ritchie, [2005] O.J. No. 1600, 12 CPC (6th) 51 (C.A.), rev’d on other grounds 2006 SCC 45, [2006] S.C.J. No. 45, [2006] 2 S.C.J. 428 (S.C.C.).

[7] Pursuant to the Courts of Justice Act, RSO 1990, c. C. 43, s. 131; Rules of Civil Procedure, RRO 1990, Reg. 194, R. 57.01, this Court has wide discretion in awarding costs.

[8] I have taken all of the foregoing into account.

[9] I award costs of the contempt motion to the plaintiff, on a partial indemnity basis in the amount of $32,743.93 all-inclusive, without prejudice to the plaintiff’s right to seek a top up to substantial or full indemnity after trial.

C.J. Brown J. Date: January 4, 2022