Court File and Parties

COURT FILE NO.: CV-21-00680298

DATE: 20220622

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AQUANTA GROUP INC. and FORTHSPACE CANNABIS INC., Applicants

– and –

LIGHTBOX ENTERPRISES LTD., DONNELLY HOSPITALITY MANAGEMENT LTD., JEFFREY DONNELLY, SCOTT ROWE, and REID OGDON, Respondents

BEFORE: Justice E.M. Morgan

COUNSEL: Adrienne Boudreau and Daniel Hamson, for the Applicants David Altshuller and Eden Ifergan, for the Respondents

HEARD: Costs submissions in writing

COSTS ENDORSEMENT

[1] The Applicants successfully applied to disqualify an arbitrator and to have an alternative arbitrator appointed. The arbitrator who was disqualified was the preferred – indeed, the only – choice of the Respondents.

[2] The Applicants proposed any of three named arbitrators. In my ruling, I indicated that two of the three arbitrators proposed by the Applicants were acceptable choices, and directed the parties to approach each of them in turn: Aquanta Group Inc. v. Lightbox Enterprises Ltd., 2022 ONSC 3036, at para. 27.

[3] The Respondents, who vigorously opposed the disqualification of the original arbitrator, argue here that the Applicants were not quite successful because I only recommended two of their three proposed arbitrators. With respect, that argument lacks a certain air of reality. The entire case revolved around the position of the original arbitrator and whether or not to re-appoint him; the choice of who should replace him was an after-the-fact detail that consumed almost no time at the hearing. The Applicants won the one substantive issue raised by the case.

[4] Having been successful, the Applicants are entitled to their costs: Bell Canada v. Olympia & York Developments Ltd. (1994), 17 OR (3d) 135 (Ont CA); St. Jean (Litigation guardian of) v. Cheung 2009 ONCA 9.

[5] Counsel for the Applicants seek partial indemnity costs in the all-inclusive amount of $21,411.22. Counsel for the Respondents submit that this is too high, and propose an amount closer to the Respondents’ own all-inclusive amount of $8,761.96. Respondents’ counsel point out that the hearing of the Application was relatively brief – roughly an hour and a half.

[6] I agree that the hearing was not a lengthy one. I thank both sides’ counsel for their concise arguments. The matter was factually straightforward and no one felt the need to dwell on facts that were not germane to the matter at hand. The issue was, however, a legally thorny one. Both sides produced factums and a collection of authorities. Preparing for the case doubtless took some considerable legal research.

[7] I am not inclined to inquire into why Applicants’ counsel worked the number of hours that they did on the case. The amount of costs they propose is within the norm for a short but legally significant application. Applicants’ counsel invested what it took to argue their case well, and that investment has paid dividends for their client.

[8] I will use my discretion under section 131 of the Courts of Justice Act to round off the figure for convenience. The Respondents shall pay the Applicants costs in the amount of $21,400, inclusive of fees, disbursements, and HST.

Date: June 22, 2022

Morgan J.