Court File and Parties

Court File No.: CV-12-470776 Date: 2022-01-17 Ontario Superior Court of Justice

Re: 1734934 Ontario Inc., 2187195 Ontario Inc., 2137362 Ontario Inc., 1901164 Ontario Inc., KE Restaurants Inc., Plaintiffs / Respondents And: Tortoise Restaurant Group Inc., Turtle Jack’s Marketing Fund Inc., Tortoise Restaurant Group (2019) Inc., Defendants / Appellants

Before: Justice Mohan D. Sharma

Counsel: Daniel J. MacKeigan, Cole Vegso, for the Plaintiffs / Respondents Adrienne Boudreau and Jonathan Schacter for the Defendants/Appellants, Tortoise Restaurant Group Inc., Turtle Jack’s Marketing Fund Inc., and Tortoise Restaurant Group (2019) Inc. Eric Mayzel and Jonathon Shepherd for the Defendant / Appellant, 11554891 Canada Inc.

Heard: January 17, 2022

Endorsement

[1] This is my cost decision from an appeal released on December 6, 2021 (1734934 Ontario Inc. et al v. Tortoise Restaurant Group Inc. et al., 2021 ONSC 8014). I granted the defendants’ appeal and set aside the Master’s order (a) amending the plaintiffs’ pleading to include claims related to supplier contributions to an Ad Fund, and (b) adding 11554891 Canada Inc. (“115”) as a defendant to this action.

[2] The TRG defendants (Tortoise Restaurant Group Inc., Tortoise Restaurant Group (2019) Inc. and Turtle Jack’s Marketing Fund Inc.) submitted cost submissions seeking $29,043.08 in disbursements, partial indemnity costs of the appeal, and fixed costs of the motion (as fixed by Justice Archibald as the case management judge), broken down as follows:

a. $24,043.08 in partial indemnity costs of the appeal, including disbursements.

b. $5,000 in fixed costs, all inclusive, from the underlying motion.

[3] 115 seeks $18,184,00 in partial indemnity costs of the appeal, including disbursements, plus $5,000 in fixed costs from the underlying motion.

[4] The plaintiffs, in their responding submissions, argue that the amount sought is excessive, many of the appellants arguments were unsuccessful yet the plaintiff was forced to respond to them, there was duplication of the arguments as between the appellants, and that the costs should be limited to the costs of the motion. The appellants have delivered reply submissions, which I have reviewed.

[5] Pursuant to s. 131(1) of the Courts of Justice Act, the Court has a broad discretion when determining the issue of costs. Rule 57.01(1) sets out the factors to be considered by the Court when fixing costs.

[6] The overall objective of fixing costs is to determine an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v Public Accountants Counsel for Ontario, 2004 14579 (ON CA), [2004] OJ. No. 2634 (C.A.). In determining costs, I must consider the factors set out in rule 57.01(1), as well as the principle of proportionality set out in rule 1.04(1.1).

[7] Two factors suggest that the costs sought by the appellants are excessive. First, while they were entirely successful in the result, many grounds of appeal that were argued and which formed the basis of written and oral submissions were not successful. Second, the costs of the underlying motion were fixed at $5,000, and therefore in my view, a fair and reasonable expectation of the unsuccessful party was that costs of the appeal would not significantly depart from the quantum of costs of the underlying motion.

[8] For these reasons, I order that the plaintiffs pay forthwith,

a. To the TRG Defendants, their costs of the appeal fixed in the amount of $8,000, plus $5,000 in fixed costs from the underlying motion.

b. To 115, its costs of the appeal fixed in the amount of $7,000, plus $5,000 in fixed costs from the underlying motion.

Justice M. D. Sharma

Date: January 17, 2022