Court File and Parties

COURT FILE NO.: CV- 16-559618 DATE: 20230329 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IRENE PENKARSKI, Plaintiff – and – MIRIDA LTD. and MERCANTILE PROPERTY GROUP LLC and LUNA PARTNERSHIP ONE LLP., Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Joel Vale and David Fogel, for the Plaintiff (Responding party) Duncan Macfarlane, for the Defendants (Moving parties)

HEARD: Cost submissions in writing

Costs Endorsement

[1] Defendants brought a motion to enforce Minutes of Settlement. They claimed that the Plaintiff has failed to produce certain financial information and that the Plaintiff is responsible for certain payments contemplated in the Minutes.

[2] After a substantial amount of investigation of accounts paid by the Defendants, the Plaintiff proved that nothing is owing and no documents are missing. The Plaintiff deserves her costs of these efforts to prove to the Defendants that they were mischaracterizing financial information that was in their own possession.

[3] In addition, the Defendants took the position that the Plaintiff had stolen from them a substantial amount of money. They were wrong and should have known that they were wrong.

[4] Under these circumstances, the Plaintiff is entitled to costs on a substantial indemnity scale. She seeks a total of $59,720.87. I must say that given the extent of effort to which her counsel was put responding to this motion, that is a rather modest request. A costs award in that range would certainly fulfill the dual requirements of Rule 57.01(1)(0.a) and (0.b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that the level of costs compensate the successful party without reaching beyond the reasonable expectations of the unsuccessful party.

[5] Pursuant to the Minutes of Settlement, Defendants’ counsel holds $150,000.00 in trust as security against costs incurred by the Plaintiff or a reassessment of taxes by the U.S. tax authorities. Since these funds are designated for the protection of the Plaintiff, they may be used to satisfy the present costs award.

[6] Rounding the figure off for convenience, the Defendants shall pay the Plaintiff costs in the all-inclusive amount of $59,000.00. This amount is payable forthwith from the funds held in trust in respect of this matter by Defendants’ counsel.

Date: March 29, 2023 Morgan J.