Court File and Parties

COURT FILE NO.: CV-21-00665019-00CL DATE: 2022-08-31 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bridlewood Finch Developments Ltd., Plaintiff AND: 2372285 Ontario Ltd. and 2366829 Ontario Ltd., Defendants

BEFORE: Mr. Justice H.J. Wilton-Siegel

COUNSEL: Michael Tamblyn, Marco Falco and Aleksandar Jovanovic, for the Plaintiff Geoff R. Hall and Kishan Lakhani, for the Defendants

HEARD: In Writing

COSTS ENDORSEMENT

[1] There were two motions before the Court – a motion to stay the action against each of the two defendants and a motion for a certificate of pending litigation. The parties also sought the appointment of an arbitrator but proposed different candidates. In this Costs Endorsement, capitalized terms have the meaning ascribed to them in the Courts’ Endorsement dated April 27, 2022.

[2] The motion to stay in respect of 237 was granted on a permanent basis. The motion in respect of 236 was granted pending completion of the Arbitration. The motion for a CPL was also granted. Lastly, an arbitrator proposed by Bridlewood was appointed. However, minimal time was spent on this matter and there was no dispute on the need for such an appointment. I have therefore disregarded the outcome of this motion in making the costs award herein.

[3] The Kwan Companies quantify their partial indemnity costs at $54,150 in respect of the motion to stay plus some court attendance time, disbursements and HST. Bridlewood quantifies its partial indemnity costs at $68,904.60 plus disbursements and HST.

[4] Bridlewood quantifies its partial indemnity costs in respect of the CPL motion at $33,595.80 plus disbursements and HST. The Kwan Companies quantify their partial indemnity costs of this motion at $39,339.60 plus their remaining court attendance time, disbursements and HST.

[5] The Kwan Companies submit that success was divided on the motions and that there should therefore be no costs awarded in respect of the motions. Bridlewood submits that it was largely successful on the primary issues in these motions in that (1) the CPL was granted and (2) the motion to permanently stay the Action against 236 as an abuse of process was dismissed although a temporary stay was granted pending completion of the Arbitration.

[6] Bridlewood also suggests that its offer to settle dated September 7, 2021 should be taken into consideration by the Court. It submits that it achieved in substance the result contemplated in the offer apart from abandonment of the stay motion in respect of 236.

[7] In reaching the determinations herein, I have taken the following matters into consideration.

[8] First, the stay motion in respect of 237 was entirely unnecessary. The record before the Court does not evidence Bridlewood’s abandonment of this part of the motion until after cross-examinations were completed and the Kwan Companies filed their factum. Accordingly, it appears that the Kwan Companies were required to incur expenses in prosecuting the stay motion that were unnecessary.

[9] Second, the motion in respect of 236 involved two components. The Kwan Companies asserted abuse of process as a basis for a stay and were unsuccessful. However, Bridlewood unsuccessfully argued against a temporary stay. This part of the motion was at least as complex as the first part insofar as it required an elucidation of the Bridlewood claim in the Arbitration.

[10] Third, although Bridlewood characterizes the grant of a temporary stay against 236 as minor, the significance of that order can only be assessed after the Arbitration is completed.

[11] Fourth, because of the relative complexity of the issues associated with the determination to grant a temporary stay, and the real possibility that the overall affect of the Court’s determinations will be to severely restrict if not altogether eliminate any scope for an independent action against 236, I do not think that Bridlewood substantially achieved the outcome contemplated in its offer.

[12] Fifth, apart from Bridlewood’s argument based on its offer which is rejected, neither party argued for costs on a substantial indemnity scale and I see no basis for an award of costs other than on a partial indemnity basis.

[13] Sixth, after addressing the stay motion, the CPL motion was relatively straightforward in terms of both the factual basis and the legal issues involved.

[14] Lastly, neither party has objected to the level of seniority of counsel, the amount of time spent, the rates charged or the disbursements incurred by the other party. Independently, I am also of the view that the costs of the parties in respect of these matters appear reasonable.

[15] Based on the foregoing, I reach the following conclusions.

[16] First, success on the stay motion was divided and it is therefore appropriate that each party bear its own costs of this motion.

[17] Second, Bridlewood was successful on the CPL motion and is therefore entitled to costs on a partial indemnity basis. Accordingly, Bridlewood is entitled to fair and reasonable costs in respect of this motion which are fixed in the amount of $35,000 on an all-inclusive basis.

Wilton-Siegel J.

Date: August 31, 2022