Court File and Parties

COURT FILE NO.: CV-22-00681986-0000 DATE: 20240328 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: 1923968 ONTARIO LTD. o/a AS PHYXIAT COURIER, Plaintiff

AND:

LIQUOR CONTROL BOARD OF ONTARIO and TRILLIUM SUPPLY CHAIN INC., Defendants

BEFORE: Koehnen J.

COUNSEL: Kirby Cohen for the moving party defendant LCBO Bonnie Greenaway for the moving party Trillium Supply Chain Inc. Damien Buntsma for the respondent, plaintiff

HEARD: November 28, 2023

Endorsement

[1] The defendants move to strike the statement of claim as disclosing no cause of action under Rule 21.01 (1) (b) and as being frivolous and vexatious under Rules 21.01(3)(d) and 25.11, without leave to amend.

[2] The plaintiff operates Ontario’s largest intra-province liquor delivery service and is licensed to do so under sections 2(1) (e) and 3(1) 4 of the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15 Sched. 22 (the “LLCA”).

[3] The licence allows the plaintiff to transport only alcohol obtained from the LCBO. For most of its operations, the plaintiff picks up alcohol from LCBO affiliated distribution centres and delivers it to wine and spirit manufacturers, independent agents, retailers and restauranteurs.

[4] The Plaintiff has operated in this industry since 2015. Until January 2021, the plaintiff picked up liquor for delivery from the LCBO’s distribution centre in downtown Toronto. It operated without incident. In January 2021, the LCBO relocated its distribution centre to Caledon Ontario and contracted with the defendant Trillium to manage it. Since Trillium began managing the distribution centre, the plaintiff has incurred significant difficulties which are further outlined in the statement of claim.

The Test to Strike

[5] The defendants first move to strike the statement of claim as disclosing no cause of action under rule 21.01 (1) (b).

[6] The test to strike is not in dispute. The threshold to strike a claim is high. Atlantic Lottery Corp. Inc. v Babstock, 2020 SCC 19 at para 90; PMC York Properties Inc v Siudak, 2022 ONCA 635 at para 87. Facts alleged in the statement of claim are deemed to be capable of proof. A Claim will only be struck if, on a generous reading, it is “plain and obvious” that it discloses no reasonable cause of action. R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para 17.

[7] Even a “germ” or “scintilla” of a cause of action suffices to withstand a motion. Tycorra Investments Inc. v PNC Equipment Finance, 2022 ONSC 159 at para 14. As Justice Epstein (as she then was) put it in Dalex v. Schwartz Levitsky & Feldman, (1994) 19 O.R. (3d) 463,

…although the court has inherent jurisdiction to strike out a pleading as disclosing no legally tenable position, such power should be exercised sparingly and only when there is no doubt that no cause of action or defence exists. In order to foreclose the consideration of an issue past the pleadings stage, the moving party must show that there is an existing bar in the form of a decided case directly on point from the same jurisdiction demonstrating that the very issue has been squarely dealt with and rejected by our courts. Only by restricting successful attacks of this nature to the narrowest of cases can the common law have a full opportunity to be refined or extended. Tycorra Investments Inc. v. PNC Equipment Finance, 2022 ONSC 159 at para. 15.

[8] In addition, the defendants move under rules 21.01(3)(d) and 25.11(b)-(c) to strike the claim as being frivolous, vexatious or otherwise an abuse of process of the court.

[9] Courts should only strike claims on this basis in “the clearest of cases” Currie v Halton Regional Police Services Board at para 18 such as where a plaintiff relitigates a claim that has already been decided Currie v Halton Regional Police Services Board at para 17 or where a claim “demonstrates a complete absence of material facts.” Cerqueira v Ontario, 2010 ONSC 3954 at para 11. Allegations are “scandalous” when they are “unconnected to any proper cause of action are the equivalent of name-calling.” Cerqueira v Ontario, 2010 ONSC 3954 at para 45.

[10] With those tests in mind, I turn to the specific arguments in support of the motion to strike. I will address those arguments under four headings: arguments against the province of Ontario, negligence, conspiracy and intentional interference with contractual relations.

A. Allegations Against the Province of Ontario

[11] Although Ontario has not been named as a defendant in the action, the statement of claim contains several allegations against the province.

[12] By way of example, paragraph 24 of the claim alleges that the Ontario Government has refused to take steps to ensure the services of Trillium are completed lawfully and in good faith. Paragraph 48 of the claim alleges that:

Further to the preceding, given the substantial outlay of funds in fundamentally altering the function of the monopoly of the LCBO, to utilize Trillium as its agent, said conspiracy would equally have been within the direction and knowledge of the Ontario Government Executive, including the Premier of Ontario, Doug Ford. Given same, including the surreptitious nature of the arrangement between the Defendants, the Secret Agreement’s terms and conditions, and carrying out of same, are wholly within the knowledge of the Ontario Government, LCBO, Trillium and DHL, and being carried out, intentionally, against the public good and public policy.

[13] References to the knowledge of the Ontario government executive including the Premier amount to an abuse of process. Neither Ontario nor the Premier are named as defendants. For that reason alone, the allegation is abusive because it is irrelevant to the claim.

[14] The allegations against Ontario also sound in bad faith. Section 17 of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sch. 17 requires leave of the court to commence an action against the Crown in certain circumstances. Those circumstances would appear to apply here. Section 17(1) provides as follows:

17 (1) This section applies to proceedings brought against the Crown or an officer or employee of the Crown that include a claim in respect of a tort of misfeasance in public office or a tort based on bad faith respecting anything done in the exercise or intended exercise of the officer or employee’s powers or the performance or intended performance of the officer or [the] employee’s duties or functions.

[15] Section 17(2) of the Act provides that a proceeding to which the Act applies is deemed to have been stayed until leave of the court is granted to permit the claim to proceed.

[16] It strikes me that the allegations against Ontario and its Premier are designed to avoid the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sch. 17 and perhaps to expand the scope of documentary discovery by making allegations against non-parties.

[17] As a result of the foregoing, I strike out all allegations made against the government of Ontario and its officers or employees, including its Premier.

B. The Negligence Claim

[18] Whether or not a duty of care exists is a question of law and can be addressed on a motion to strike. D(B) v. Children’s Aid Society of Halton (Region), 2007 SCC 38, at paras. 19, 20.

[19] The first controlling concept of negligence is proximity at the time of the loss. 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, at paras. 21, 22. Proximity considers whether the parties have “such a close and direct relationship that the imposition of a legal duty of care would be ‘just and fair having regard to that relationship.’” Facchini v. AG Canada, 2019 ONSC 3902 at para. 40; Cooper v. Hobart, 2001 SCC 79 at paras. 31, 32, 34.

[20] To establish proximity the court must first determine whether there is an existing “duty of care” within established case law into which the relationship at issue falls, or, if not, whether there is an analogous category into which the relationship falls. Subway Franchise Systems of Canada Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 25 at para. 82 and 83; Facchini v. AG Canada, 2019 ONSC 3902 at para. 42.

[21] If the relationship does not fall within an existing or analogous category, the Court must undertake its own proximity analysis. In doing so, the exercise is to determine whether the relationship is sufficiently close and direct that it would be “just and fair to impose a duty of care in law.” Subway Franchise Systems of Canada Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 25 at para. 75; Facchini v. AG Canada, 2019 ONSC 3902 at para. 42. A proximity finding “must not be grounded simply in the identity of the parties but by an examination of the particular relationship at issue.” Facchini v. AG Canada, 2019 ONSC 3902 at para. 42; Subway Franchise Systems of Canada Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 25 at para. 87. The Court should consider all relevant factors in the relationship including for example, whether there was a direct relationship between the parties, whether the parties had any specific interactions, Subway Franchise Systems of Canada Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 25 at para. 84; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 49 expectations of the parties, representations, reliance and the property or other interests involved. 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, at para. 66. Whether one of the parties could have protected themselves by contractual protection is also a crucial consideration in this analysis. 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, at para. 67. At the same time the court must also keep in mind that it is not possible to address all eventualities by contract 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, at para. 72 and that some expectations are so fundamental that they are implicit in a particular relationship.

[22] The defendants rely heavily on the decision of the Supreme Court of Canada in 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35. In that case, the Supreme Court of Canada held that in cases of pure economic loss arising out of negligent misrepresentation or negligent performance of services, the plaintiff must demonstrate that the parties were in a relationship of sufficient proximity to warrant the imposition of a duty of care. The mere foreseeability of injury was not enough to create a duty of care. In cases of negligent misrepresentation or performance of services, proximity is determined by the nature of the defendant’s undertaking and the plaintiff’s reliance on that undertaking. 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, at para. 20. The relationship is formed when the defendant undertakes responsibility which invites reasonable and detrimental reliance by the plaintiff. This is in essence a case of economic loss arising out of negligent misrepresentation and negligent performance of the service.

[23] In 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, the defendant was a manufacturer of processed meats. It entered into a relationship with the Subway Sandwiches franchisor pursuant to which the franchisor ensured that all franchisees would purchase certain types of processed meats from Maple Leaf. Maple Leaf then suffered a listeria outbreak which caused it to recall product and rendered it unable to deliver certain product for approximately 6 to 8 weeks. The plaintiff in Maple Leaf was a Subway Sandwiches franchisee who commenced a class action on behalf of all franchisees for damages resulting from the franchisees’ inability to sell product during the period in which it was unavailable.

[24] The Supreme Court of Canada dismissed the action finding that there was no proximate relationship between Maple Leaf and the franchisees. The proximate relationship and ensuing duty of care was between Maple Leaf and the ultimate consumer of the product. The defendants analogize 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35 to the present case and read Maple Leaf as precluding any intermediary without a direct contractual relationship with the defendant from being in a proximate relationship as a result of which the plaintiff’s case must fail.

[25] I do not agree with the defendants’ analysis.

[26] The plaintiff’s core complaint is that purchasers ordered alcohol from the LCBO. As a licenced delivery service, the plaintiff is then advised to pick up the alcohol at the Trillium warehouse at a particular time. The plaintiff alleges that although it appeared at the designated time, it was left waiting at the warehouse up to a full day without receiving the product the defendants had said was ready for pick up. In addition, when the plaintiff did receive product, a disproportionate quantity was damaged. In some cases all bottles in a crate or case were broken. The plaintiff alleges this is the result of Trillium’s careless handling and stacking of cases of alcohol. Rather than compensating the purchaser for the damaged product, the defendants blamed the damage on the plaintiff, thereby forcing the plaintiff to reimburse the customer or risk losing them as a customer. The plaintiff further alleges that before Trillium took over distribution, delay and breakage were rare and in those rare cases where product was damaged, the LCBO replaced it without question.

[27] On my reading of 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, however, there are significant differences between it and this case in respect of factors that the court identified as critical to the proximity analysis.

[28] In 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, at para. 79, the franchisees’ complaint related to goods that were never delivered. In the case before me the complaint relates to goods that were inordinately defective. One can understand that claims for undelivered product accentuate the traditional concern in tort law about the risk of holding defendants liable to an indeterminate class of plaintiffs for indeterminate amounts. That risk does not arise here. There is one plaintiff who claims reimbursement for damaged product and compensation for delay.

[29] The nature of the defendants’ undertakings in the two cases also differs. In 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, at para. 8, the Supreme Court of Canada noted that although franchisees were compelled to purchase products from Maple Leaf, Maple Leaf was under no obligation to supply product. In the case before me, there was a duty by the defendants to supply. They had accepted a purchase order and were bound to deliver.

[30] In 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, the court tied proximity closely to the defendant’s undertaking and the plaintiff’s detrimental reliance on that undertaking. In my view, the nature of the undertaking in this case is sufficient to withstand a motion to strike. Recall that the plaintiff arrives at the Trillium warehouse at a time specified by Trillium to pick up a specific order or orders. Implicit in that is an undertaking that the product that the plaintiff is being summoned to pick up will be ready at or around the specified time. Equally implicit in the request that the plaintiff appear to pick up product is an undertaking that the product be fit for the plaintiff to accept and deliver. Trillium would not be fulfilling its undertaking to deliver a case of a particular alcohol to the plaintiff if some or all the bottles in the case were broken. In addition, the plaintiff alleges that product consignments are frequently mislabelled so that the plaintiff delivers product to one client that was ordered by another. The claim alleges that in cases of broken bottles or mislabelled product, the defendants blamed the problem on the plaintiff thereby forcing the plaintiff to reimburse the purchaser or risk losing them as a client. This occurred at the same time as the LCBO acknowledged Trillium’s shortcomings in writing.

[31] The defendants suggest that there has been no detrimental reliance by the plaintiff because the plaintiff had no other options by virtue of the LCBO’s monopoly on alcohol sales in Ontario. I do not agree with that analysis. The plaintiff does not challenge LCBO’s monopoly. The detrimental reliance in which the plaintiff engaged was to show up at the designated time to pick up product of merchantable quality when in fact product of merchantable quality was not ready at the designated time.

[32] The LCBO is the vendor of the alcohol in question. It is therefore ultimately reliable for delivery of the alcohol to the person designated to receive it (the plaintiff). The LCBO is free to choose how that alcohol is to be delivered to the plaintiff. If, however, the method the LCBO chooses is flawed, there is at least a germ or a scintilla of a claim to the effect of the LCBO is responsible for that deficiency. It is ultimately the LCBO that benefits from liquor delivery services like the plaintiff’s. Having larger delivery services means that, from a logistics perspective, the LCBO needs to deal with fewer parties thereby easing congestion at its distribution centres, increasing efficiency and decreasing costs.

[33] Returning to principles of proximity, the fundamental exercise is to determine whether the relationship is sufficiently close and direct that it would be “just and fair to impose a duty of care in law”. It seems just and fair for the plaintiff to be able to hold the defendants responsible if they indeed arranged for the plaintiff to arrive at a designated time, failed to have product for the plaintiff, delivered product that was partly unusable and then blamed the plaintiff for the deficiencies. Indeed, it would appear unjust and unfair to deny the plaintiff a remedy in those circumstances. This proximity finding is grounded in an examination of the particular relationship at issue as the Supreme Court directed in 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35. The proximity finding is based on a direct relationship and specific interactions between the parties at the Trillium warehouse and in the defendants’ statements to the plaintiffs’ customers which attributed liability to the plaintiff. As for the expectations of the parties, it would be a core and reasonable expectation of the plaintiff that when the defendants transferred alcohol into the plaintiff’s possession, it would be in useable bottles, not broken bottles and that the defendants would replace any broken bottles. That expectation is so fundamental that it would be unreasonable to expect the parties to contract for that protection.

[34] On my reading of the statement of claim, it has pleaded sufficient facts to establish proximity and a duty of care. It alleges conduct that breaches the standard of care and alleges that the plaintiff has sustained damages caused by the defendants’ breaches. That is sufficient to ground a claim in negligence.

[35] Trillium alleges that the plaintiff has failed to particularize the nature of the agency relationship between Trillium and LCBO. I do not accept that submission. The specific nature of the agency relationship is known to the LCBO and Trillium not to the public at large. It is sufficient to say that the LCBO has a monopoly on the sale and distribution of alcohol in Ontario. Trillium would therefore not be able to carry out the function it does without having been asked by the LCBO to do so.

[36] There are, however, some deficiencies in the pleadings that should be corrected in addition to removing references to the government of Ontario. Many of the paragraphs of the claim are drafted excessively broadly and appear to depart from the narrow particulars of the negligence pleaded in the claim. In that regard I would strike out the following paragraphs:

a. Paragraph 21 of the statement of claim complains that the LCBO has allowed a private entity to carry out a public function. Even if the court accepted that the distribution of alcohol was a “public function,” the LCBO is free to contract out as it chooses absent a statutory or some other legal prohibition. Whether a government entity should or should not contract out a commercial service, absent something more, is not a matter for courts to decide.

b. Paragraph 22 of the claim alleges that the LCBO owes duties to all couriers holding liquor delivery service licenses to ensure that its agents fulfil their duties properly. That too, is excessively broad and departs from the particulars of negligence pleaded. The issue here is the relationship between the plaintiff and the defendants, not the relationship between the defendants and others who are not party to the action.

c. Paragraph 59 pleads a general duty by the LCBO “to create, structure, oversee, actively supervise, and implement an effective liquor supply chain, which they breached. That too is overly broad and goes well beyond the particulars of negligence that the claim alleges.

C. The Conspiracy Claim

[37] The defendants argue that the plaintiff’s conspiracy claim should be struck out as disclosing no reasonable cause of action. In doing so they pick away at certain imperfections in the claim. That, however, is not the test. In my view the statement of claim discloses sufficient material facts which, when read generously, disclose at least a germ or a scintilla of a claim in conspiracy.

[38] In Tucker v. Seaquest Capital Corporation, 2013 ONSC 7296, Morawetz J. (as he then was) held that a claim for conspiracy had to:

(i) Describe who the several parties are and their relationship with each other; (ii) Allege the agreement between the defendants to conspire; (iii) State precisely what the purpose was or what were the objects of the alleged conspiracy; (iv) Set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy; and (v) Allege the injury and damage occasioned to the plaintiff thereby. Tucker v. Seaquest Capital Corporation, 2013 ONSC 7296 at para. 10.

[39] The statement of claim does that. The LCBO and Trillium are described as is their relationship with each other ( See for example Statement of Claim paras. 8, 9, 12, 14, 15) The claim alleges an agreement between the defendants to conspire (See for example Statement of Claim paras. 10, 16, 17). The claim alleges both unlawful conduct and lawful conduct (See for example statement of claim para. 1 (g)). Unlawful conduct includes torts Tucker v. Seaquest Capital Corporation, 2013 ONSC 7296 at para. 18 such as negligence and intentional interference with contractual relations (See for example statement of claim paras. 40-73). The purpose of the conspiracy is to drive the plaintiff out of business (statement of claim paras. 43 – 47, 50). The claim also alleges that the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff (statement of claim at paras. 8, 9, 12, 14, 15). The statement of claim also sets out overt acts done by the defendants to pursue the conspiracy (statement of claim at paras. 41, 42, 43, 45).

[40] The defendants’ real complaints about the conspiracy claim is that there are additional matters pleaded which they say do not support the conspiracy claim such as the allegation that the conspiracy was for the defendants’ financial benefit. While that allegation may not be necessary to support a conspiracy claim and may not, standing alone, be sufficient to sustain a conspiracy claim, it does not undercut the fact that there are other allegations in the pleading to support a claim for conspiracy.

[41] The defendants also argue that the pleading does not set out with sufficient particularity the material facts supporting the elements of the conspiracy and does not separate out the conduct of each of the two alleged conspirators. Each of the defendants lists a variety of cases in support of that proposition. I do not contest the proposition. Its application, however, turns on the specific pleading and circumstances of each case. Courts have also recognized that the need for particularity in conspiracy claims must be tempered with the reality that, in most cases, a conspiracy claim requires the plaintiff to prove its claim by pleading “indirect and circumstantial evidence.” Tucker v. Seaquest Capital Corporation, 2013 ONSC 7296 at para. 11. I find the claim pleads the level of particularity that one could expect a plaintiff to know of in the circumstances of the sort of being alleged.

D. Intentional Interference with Contractual Relations

[42] Cromwell J. described the tort of intentional interference with economic relations as follows in A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12:

While the elements of the tort have been described in a number of ways, its core captures the intentional infliction of economic injury on C (the plaintiff) by A (the defendant)'s use of unlawful means against B (the third party) . . . A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12 at para 23.

[43] The plaintiff has pleaded that pattern of conduct. It alleges that the defendants damaged the customer’s property (alcohol) at the warehouse and then falsely laid blame for that damage at the feet of the plaintiff in order to then solicit business directly from those customers to lead them to stop dealing with the plaintiff.

[44] While I agree that these complaints have not been pleaded quite as crisply in the statement of claim as they are in the plaintiff’s factum on this motion, when read generously, the pleading makes out a claim in this regard. The plaintiffs are free to sharpen the focus of this issue in any amended pleading.

[45] The plaintiff raises a second basis for claiming wrongful interference with contractual relations which is less clear. It argues that Trillium continues to enforce an unlawful non-competition restrictions against a former employee of Trillium’s parent company who is a current employee of the plaintiff. The plaintiff alleges that this is unlawful conduct in the sense that the employee could bring an action to challenge the enforceability of the non-competition restrictions. Kraik v Ungar, 2020 ONSC 7221 at para 42. This claim fails as currently pleaded. The plaintiff has not pleaded the unlawful nature of restriction. For example, did it arise before or after noncompetition covenants in employment contracts were deemed to be unenforceable in Ontario by legislation? If before, what are the terms of the covenant that make it unlawful? How is the plaintiff prejudiced by having to put another employee on site rather than the former DHL employee? Those are all facts material to the claim that are missing from the pleading.

Leave to Amend

[46] The defendants argue that the plaintiff should not be granted leave to amend. That is the case where it is plain and obvious that there is no tenable cause of action possible. Crown Crest Financial Corp. v. Sabbah, 2019 ONSC 7114 at para. 12.

[47] The defendants say that the plaintiff had the chance to amend in the almost one year between the motion being scheduled and argued. The defendants submit that the failure to amend in that time should lead the court to infer that the claim cannot be amended to correct its deficiencies.

[48] Counsel for the plaintiff says he asked for a discussion about the alleged frailties in the claim but that the defendants refused. The defendants say they demanded particulars and were denied a meaningful answer. The demand for particulars somewhat misses the point given that I have found that the claim contains sufficient particulars to withstand a pleadings motion. I decline to infer that the pleading cannot be cured by amendment because I find that only a few paragraphs should be struck out with the balance remaining. There is strictly speaking therefore no need to amend for the claim to proceed.

[49] The usual practice is to grant the plaintiff leave to amend unless it is clear that the plaintiff cannot improve its case by any further and proper amendment. Ramirez v Ledn Inc., 2023 ONSC 3716 at para 53. In my view, this was a case of a statement of claim with some imperfections in it rather than one that is so fundamentally flawed that it cannot be amended to correct those imperfections. As a result, the plaintiff will have leave to amend the claim if it wishes to do so.

Conclusion and Costs

[50] In the result I strike out strike out paragraphs 24, 48 and any other allegations made against the government of Ontario and its officers or employees, including its Premier. I also strike out paragraphs 21, 22, 28-30,and 59 of the statement of claim.

[51] The plaintiff has been substantially successful on the motion. The true focus of the complaint was the negligence claim and the lack of proximity. Those portions of the claim that I have struck out are relatively minor. Many can be saved with small amendments. Overall this was a statement of claim that survived a pleadings motions. Although it had imperfections and excesses here and there, it was not a claim so bereft of merit that it had to be struck out, let alone be struck out without leave to amend. In those circumstances the plaintiff should be entitled to its costs.

[52] The plaintiff seeks costs of $30,523.56 on a partial indemnity scale, including HST and disbursements. This is roughly in line with the defendants costs. LCBO filed a costs outline coming to $40,072.71; Trillium’s bill of costs came to $28,888; both on a partial indemnity scale. The motion was significantly more important for the plaintiff than it was for the defendants. In recognition of the partial, minor success the defendants had I would fix costs in favour of the plaintiff at $25,000 payable by the defendants within 30 days.

Date: March 28, 2024 Koehnen J.