Court File and Parties

COURT FILE NO.: CV-21-00672098-00CL DATE: 2022-09-15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MITSUBISHI HC CAPITAL AMERICA INC., Plaintiff(s)/Applicant(s)

AND:

ECAPITAL TRUST CORP., TFS RT, INC., ECAPITAL HOLDING CORP., TFS MANAGEMENT, INC., TFP INTERNATIONAL, INC. AND ECAPITAL ENTERPRISES CORP., Defendant(s)/ Respondent(s)

BEFORE: Justice Cavanagh

COUNSEL: Mark S. Shapiro and David Z. Seifer, for the Defendants and Moving Parties Jason Wadden and Eileen Church Carson for the Plaintiff and Responding Party

HEARD: In Writing

COSTS ENDORSEMENT

[1] The defendants moved for an order staying this action, permanently or, in the alternative, temporarily.

[2] By endorsement dated July 15, 2022, I granted the defendants’ motion and made an Order temporarily staying the within action pending the outcome of the action in New York.

[3] The defendants seek costs of this motion on a partial indemnity scale in the amount of $20,212.44 plus HST, inclusive of disbursements, plus $750, plus HST, for their costs submissions.

[4] The plaintiff also provided a costs outline for costs it would seek if successful in the motion. In its costs outline, the plaintiff claimed costs on a partial indemnity scale in the amount of $54,555.59.

[5] The plaintiff submits that under rule 57.03(1), it is open to the Court to depart from the usual rule that on the hearing of a contested motion, the court shall fix the costs of the motion and order them to be paid within 30 days.

[6] The plaintiff submits that in the particular circumstances of this case, where the action against the defendants (who are not sued in the New York proceedings) has only been temporarily stayed, costs should follow the cause and be awarded upon final disposition of this action.

[7] The plaintiff submits, in the alternative, that if I were to determine that costs should be fixed and payable forthwith, it would be fair and reasonable for the parties to bear their own costs, or for costs to be reduced because, the plaintiff submits, the defendants were only partially successful in the motion.

[8] On this motion, the defendants sought a permanent stay and, in the alternative, a temporary stay. They were successful in obtaining a temporary stay of the Ontario action.

[9] I do not agree that it would be just to leave the costs to be determined in the cause of the Ontario action, to order that each side bear its own costs, or to make an order for costs based on success or failure on particular issues.

[10] I am satisfied that, as the successful parties on the motion, the defendants are entitled to costs of this motion on a partial indemnity scale.

[11] The amount claimed for costs by the defendants is reasonable, having regard to the factors in rule 57.01.

[12] I fix costs to be paid by the plaintiff to the defendants on a partial indemnity scale in the amount of $23,687.55 comprised of fees of $20,003.40 ($19,253.40 plus $750), HST on fees of $2,600.44, and disbursements (including HST) of $1,083.71.

[13] These costs are to be paid within 30 days.

Cavanagh J.

Date: September 15, 2022