Court File and Parties

COURT FILE NO.: CV-21-00668594-0000 DATE: 20220608

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2788610 Ontario Inc., Plaintiff AND: Hemant Bhagwani, Fatima Bhagwani, 1727799 Ontario Inc. and Bombay Frankie Inc., Defendants

BEFORE: Carole J. Brown J.

COUNSEL: Allan D.J. Dick and Daniel Hamson, for the Plaintiff John H. Simpson and Stephen Cooley, for the Defendants

HEARD: January 28, 2022

COSTS ENDORSEMENT

[1] The plaintiff, which was wholly successful on this interim injunction, seeks its costs on a partial indemnity basis in the amount of $79,836.56 ($8,051.00 for disbursements, $63,526.50 for legal fees, plus HST).

[2] The facts are as set forth in the decision, released February 10, 2022.

[3] The plaintiff submits that its costs are reasonable, having regard to the applicable factors to be considered as set forth at Rule 57.01 of the Rules of Civil Procedure, RRO 1990, Reg 194.

[4] It is the position of the plaintiff that costs of the injunction should be awarded at this juncture, rather than reserved to the trial judge. The plaintiff submits that there may be no trial of the action as the defendants have numerous other tradenames under which they can do business that do not infringe upon the plaintiff’s trademark. They rely on cases which awarded costs of an interim injunction at the injunction rather than at trial: see Kirstine v Kirstine, [2022] O.J. No. 973 (Sup. Ct.) at para. 10.

[5] The defendants maintain that costs of the interim injunction should be reserved to the trial judge. They refute the plaintiff’s position that there may not be a trial, stating categorically that a trial will be necessary. They rely on cases which leave costs to the trial judge: see Quizno’s Canada Restaurant Corp. v 1450987 Ontario Corp., [2009] O. J. 2563 at paras. 10-13.973 at para. 6, citing Precision Fine Papers Inc. v Durkin, [2008] O.J. No. 2189 at paras. 15-18.

[6] In the alternative, they state that the plaintiff’s fees are excessive and maintain that $15,000 plus HST would be reasonable. They give no reason for that number. Nor do they append their bill of costs, to establish their amount expended for the injunction motion.

Analysis

[7] In his text entitled Injunctions and Specific Performance, Justice Robert J. Sharp states:

… It would be unusual to award costs of an interlocutory injunction motion to the successful party prior to trial. As there has been no final determination of the rights of the parties, but rather an order to protect the plaintiff’s position pending trial, the errors in my that’s a good idea preferable course is to reserve the question of costs to the trial judge.

[8] Further, in Quizno’s Canada Restaurant Corp. v 1450987 Ontario Corp., supra, Perell J. stated:

Where a plaintiff succeeds in obtaining an interlocutory injunction it is the preferable (although not inevitable) course to reserve costs to the trial judge, which is to say to make costs in the cause. This is the preferable course because it allows the court to have the benefit of hindsight and to avoid the possible injustice of awarding costs to a plaintiff for having succeeded in obtaining an order to protect of me his or her position pending trial when the outcome of the trial reveals that that plaintiff’s position was not worthy of having been protected.

It is for similar reasons that a plaintiff who succeeds in obtaining an interlocutory injunction must give an undertaking as to damages.

The action at Bar is not over, and it remains to be determined whether the plaintiffs will succeed at trial.

Accordingly, I am exercising my discretion to order costs in the cause.

[9] In this case, I exercise my discretion by ordering costs in the cause.

[10] However, in the event that the plaintiff is correct as regards a final trial, and in the event that no trial is held within 18 months of the date of this decision, the parties may return to me for a determination of costs as regards the interlocutory injunction.

C.J. Brown J.

Date: June 8, 2022