Court File and Parties

COURT FILE NO.: CV-21-666474

DATE REVISED: 20221125

ONTARIO SUPERIOR COURT OF JUSTICE

RE: FORWARD SIGNS INC., FORWARD POWER LIGHTING INC., HUMMINGBIRD CONSTRUCTION INC., and 2219371 ONTARIO INC., Plaintiffs

-and-

PHILCAN GROUP INC., MING KWOK HO also known as PHILIP HO, WAI MAN HO also known as RAYMOND HO, PETER LUK, GUO WEI LI, Defendants

BEFORE: FL Myers J

COUNSEL: John Philpott, for the Plaintiffs

H. Keith Juriansz, for the Defendants

READ: November 3, 2022

ENDORSEMENT[^1]

[1] I deal with the costs of the motion decided October 3, 2022 reported at 2022 ONSC 5593.

[2] The defendants seek costs on a substantial indemnity basis in light of their success fending off the extension to trial of the interim injunction that had been granted against them in 2021.

[3] While success usually carries costs, I exercise my discretion to defer costs to be determined in the cause. I do this because it is more than possible that the defendants will be found to have committed very serious and deliberate wrongdoing in secretly planning a competitive business while fiduciaries to Forward Signs Inc. They may even be found to have used employees and funds of Forward Signs to help them springboard into unfair competition with the corporation while they were duty-bound to protect it selflessly.

[4] While the plaintiffs were not successful in their motion, they had to fight tooth and nail at all steps to get the defendants’ attention and to obtain belated disclosures of limited documents only. If the plaintiffs succeed at trial, the court may well find that the defendants are accountable for profits earned at the defendants’ expense during the period of the injunction. The defendants’ conduct of the motion, while ultimately successful, may also have been steps in a larger tort or breach of fiduciary duties.

[5] Neither side is without blame for procedural delays. But, if the defendants are found liable, then it seems to me that the trial judge could well find the plaintiffs’ effort to enforce the order of Black J. by extending it was reasonably taken and that an award of costs in the circumstances would just be adding insult to injury.

[6] I also have significant concerns that the costs claimed by the defendants seem to extend beyond the confines of the motion and may well overlap with costs in the broader action. If that is so, then the costs of the motion should be assessed or reviewed at the same time as the costs of the action to preclude double counting.

[7] Finally, Rule 4.01 (2)(i) of the Rules of Civil Procedure, RRO 1990, Reg. 194, requires electronic documents to be double spaced, have about 40 mm of white space before the left margin of text, and to use characters of not less than font size 12.

[8] The defendants delivered single-spaced materials. It should go without saying that document formatting is not to be altered to try to cram extra words into a page-limited submission. But, apparently, it needs to be said: document formatting is not to be altered to try to cram extra words into a page-limited submission

FL Myers J

Date: November 3, 2022

[^1]: Revised to fix typos shown in paras. 7 and 8.