Court File and Parties
COURT FILE NO.: CV-21-87820 and CV-21-87821
DATE: 2022/08/31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 790432 Ontario Inc., Plaintiff
AND: 12219913 Canada Corp., Marco Proulx, Marcie Tilley, Defendants
BEFORE: The Honourable Madam Justice Julianne Parfett
COUNSEL: B. Elkin and D. Bartlett, for the Plaintiff
S. Bawden and B. Bochinski, for the Defendants
HEARD: By Written Submissions
COSTS ENDORSEMENT
[1] The parties in this matter were unable to reach an agreement on costs and have submitted the matter to me for determination.
[2] The matter involved setting aside a Mareva injunction that had previously been granted ex-parte.
[3] The Defendants were successful in setting aside the injunction. It is important to note that the primary reason for setting aside the injunction was a change in the Defendants’ marital situation that led the court to conclude that there was no longer any risk that they would flee the jurisdiction.
[4] The Defendants claim that given they were successful on the motion, the general principle that the successful party should receive costs should apply. The Plaintiffs argue that the Defendants’ behaviour significantly complicated the litigation, and that no costs should be paid by either party.
[5] Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that any award of costs is within the discretion of the court and that there are numerous factors to consider. Those that are relevant to this proceeding are as follows:
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues; and
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding.
[6] The issues in this matter were of equal importance to both parties as both parties were at risk of significant financial loss.
[7] I agree with the Plaintiff that the issue of whether the sale of the matrimonial home could proceed despite the injunction did not need to be litigated. The order was clear and if it was not, the Plaintiff was prepared to consent to the sale of the matrimonial home. The need to deal with this issue complicated the litigation.
[8] Although the Mareva injunction was set aside, it was not due to any failure of the Plaintiff to be scrupulously honest about the situation. It was due to the fact that the Defendants’ intentions in relation to leaving the jurisdiction, had changed since the injunction was granted.
[9] Consequently, in my view, there shall be no award of costs.
The Honourable Madam Justice Julianne Parfett
Released: August 31, 2022
COURT FILE NO.: CV-21-87820 and CV-21-87821
DATE: 2022/08/31
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: 790432 Ontario Inc., Plaintiff
AND: 12219913 Canada Corp., Marco Proulx, Marcie Tilley, Defendants
BEFORE: The Honourable Madam Justice Julianne Parfett
COUNSEL: B. Elkin and D. Bartlett, for the Plaintiff
S. Bawden and B. Bochinski, for the Defendants
COSTS ENDORSEMENT
PARFETT J.
Released: August 31, 2022