COURT FILE NO.: CV-23-93887 DATE: 2024/06/04
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CPOS Inc. Plaintiff – and – Brandon Hwon Munn Fong Defendant
Counsel: Michael L. Byers and Amanda Perumal, for the Plaintiff Katie Black and Kelli Day, for the Defendant
HEARD: In Writing
DECISION On COSTS
R. Smith J.
Overview
[1] The plaintiff, “CPOS”, brought a motion for an injunction ordering the defendant “Fong” to return all copies of the confidential information in his control by having the information professionally wiped by a third party from his electronic devices and email account. At the motion, CPOS abandoned its position alleging improper solicitation by Fong. The order granted required Fong to describe the documents in his possession and to delete any documents on his electronic devices.
[2] The court did not grant CPOS’s request that the wiping of Fong’s electronic devices be conducted by an independent third party at Fong’s expense. The main issue decided at the motion was whether the wiping of Fong’s electronic devices would be conducted by himself or by an independent third party. The parties were invited to submit draft orders and I selected Fong’s draft order and made a few minor amendments.
Positions of Parties
[3] The defendant, “Fong”, seeks costs on a substantial indemnity basis in the amount of $119,752.96. Fong submits that the plaintiff’s motion was heavy-handed and ultimately unsuccessful as it failed to obtain injunctive relief. Fong alleges that the motion was brought for strategic reasons to prevent him from earning a living and to gain knowledge about his current employment.
[4] CPOS denies that its conduct was improper and disputes that its conduct was “shocking, reprehensible or relentlessly oppressive” or that it was “retaliatory” and as such, does not justify an award of costs on a substantial indemnity basis. Further, it submits that the relief granted by the court was more robust than Fong’s offers to settle.
Factors
[5] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure and include in addition to success, what was claimed and recovered, the complexity and importance of the matter, unreasonable conduct of any party which unduly lengthened the proceeding, scale of costs and any offer to settle, the principle of indemnity, the time spent and the principle of proportionality, and the amount that a losing party would reasonably expect to pay.
Success
[6] In this case, I find that Fong was substantially successful as his draft order was accepted and an independent third party was not ordered to wipe Fong’s electronic devices. CPOS was successful in having Fong list the items in his possession and undertaking to wipe all of the material acquired from working as an independent contractor for CPOS from his electronic devices.
Claimed and Recovered
[7] The plaintiff sought an injunction and the appointment of an independent third party to wipe Fong’s electronic devices. CPOS did not to achieve either of these outcomes but did obtain an order requiring Fong to list the items in his possession while working for CPOS and in order that he undertake to remove all of these items from his electronic devices.
Complexity and Importance
[8] The issues remaining to be decided by the court were of average complexity and were important to the parties.
Unreasonable Conduct of Any Party
[9] In these circumstances, I am unable to find that there was unreasonable conduct to by either party.
Scale of Costs and Offers to Settle
[10] The plaintiff made several reasonable offers to settle but did not achieve a better result after the motion was heard to obtain costs on a substantial indemnity scale.
Amount the Unsuccessful Party Would Reasonably Expect to Pay
[11] The plaintiff agreed that it had incurred costs of $175,622.78 which is greater than the defendant has incurred and as a result would reasonably expect to pay costs in the amount claimed. Both parties have spent a large amount of legal costs and ultimately narrowed the issue to be determined on the motion to a very narrow one which took less than two hours of court time. However, the plaintiff’s motion for an injunction caused the defendant to incur substantial legal costs in order to adequately respond to the motion.
Disposition
[12] Having considered all of the above factors, CPOS is ordered to pay costs to Fong on a liberal partial indemnity basis fixed in the amount of $70,000 plus HST plus disbursements of $7,988.73 inclusive of HST.
The Honourable Justice Robert Smith Released: June 4, 2024