COURT FILE NO.: CV-19-625513

MOTION HEARD: 20201020

REASONS RELEASED: 202101­20

WRITTEN COSTS SUBMISSIONS FILED: 20210707

COSTS ENDORSEMENT RELEASED: 20220104

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

3 DOGS DAYCARE INC.

Plaintiff

• and -

DOGTOPIA ENTERPRISES CANADA INC., PETER HERBERT THOMAS, EASTERN CANADA DOGGY CARE LTD., MARK SONIK and ANITA SAMADIAN

Defendants

BEFORE: ASSOCIATE JUSTICE McGRAW

COUNSEL: D. J. MacKeigan E-mail: dan.mackeigan@siskinds.com

• for the Defendants

A. Boudreau E-mail: aboudreau@sotosllp.com

• for the Plaintiff

COSTS ENDORSEMENT RELEASED: January 4, 2022

Costs Endorsement

[1] As set out in my Reasons For Endorsement dated January 21, 2021 (3 Dogs Daycare Inc. v. Dogtopia Enterprises Canada Inc., 2021 ONSC 514)(the “Reasons”), the Defendants brought a motion to compel the Plaintiff to deliver a further and better response to the Defendants’ Demand For Particulars and to strike certain paragraphs of the Plaintiff’s Fresh As Amended Statement of Claim (the “Amended Claim”). This is a contentious franchise dispute in which the Plaintiff, a former franchisee, makes allegations of conspiracy and claims damages of almost $9,000,000.

[2] The Plaintiff seeks costs of the motions in the amount of $11,923.04 on a partial indemnity scale. The Defendants submit that costs should be fixed in the cause in the amount of $5,000 or alternatively, reserved to the trial Judge. In the further alternative, the Defendants argue that no costs should be awarded.

[3] Subject to the provisions of an Act or the Rules, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid (s. 131(1), Courts of Justice Act (Ontario)). In exercising its discretion, in addition to the result and any offer to settle made in writing, the court may consider the factors set out in Rule 57.01(1).

[4] The overriding principles in determining costs are fairness and reasonableness (Boucher v. Public Accountants Council for the Province of Ontario, (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)). The general rule is that costs on a partial indemnity scale should follow the event except for very good reasons such as misconduct of the party, miscarriage in procedure or oppressive or vexatious conduct (1318706 Ontario Ltd. v. Niagara (Regional Municipality) (2005), 2005 CanLII 16071 (ON CA), 75 O.R. (3d) 405 (C.A.); 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 at paras. 10, 12-14).

[5] Although the Plaintiff was not completely successful on the motions, it was substantially more successful than the Defendants. As set out in the Reasons, I held that most of the particulars demanded by the Defendants were not necessary to plead their defence, constituted evidence or subordinate facts, were more appropriate for examinations for discovery and demonstrated that they knew in large part how they would defend the Plaintiff’s claims. I also declined to strike many of the paragraphs at issue except in some limited cases where there was no connection to a cause of action and/or the wording served only to cast the Defendants in a negative light. In my view, there is no reason in these circumstances to depart from the general rule that the Plaintiff should receive costs on a partial indemnity scale reflective of its success. The relief which was actually granted can be been taken into consideration in determining the quantum to be awarded.

[6] My conclusions and the amount I have awarded are supported by a consideration of the relevant factors under Rule 57.01(1). The Plaintiff’s significant damage claim and allegations of conspiracy, the importance of the litigation to both parties and the fact that the motion was not complex are all relevant (Rules 57.01(1)(a)(c)(d)). However, more prominently, the Defendants’ motions were largely unnecessary and their approximately 46 requests for further particulars and seeking to strike 41 paragraphs or portions of the Amended Claim unnecessarily extended and expanded the motions beyond what was genuinely required (Rules 57.01(1)(e)(f)). The Defendants added more unnecessary time and costs by seeking to strike certain portions of the Amended Claim on the basis that they disclosed no cause of action under Rule 21.01(1)(b) even though they acknowledged that I had no jurisdiction to grant this relief and similar relief was not available to them under Rule 25.11. This has in turn delayed examinations for discovery which may have served as a more efficient forum for obtaining the particulars sought by the Defendants.

[7] In further considering the quantum, I agree with the Defendants that some of the time claimed by the Plaintiff is not reasonable particularly in light of the materials filed. I have also taken into consideration the Defendants’ Costs Outline in which they claim that their own costs were $6,280.50 on a partial indemnity scale.

[8] Having reviewed the Costs Outlines and considered all relevant factors, I am satisfied that it is fair and reasonable in the circumstances for the Defendants pay costs to the Plaintiff fixed in the amount of $8,500 on a partial indemnity scale within 30 days.

Released: January 4, 2022

Associate Justice McGraw