Court File and Parties

Court File No.: CV-22-00675342-0000
Date: 2025-05-21
Court: Superior Court of Justice – Ontario

Applicants (Plaintiffs):
Brandy Queen Apparel ULC, Brandy Yorkdale Apparel ULC, Brandy Ste. Catherine Apparel ULC, Brandy Newmarket Apparel ULC, Brandy Rideau Apparel ULC, Brandy Square One Apparel ULC, Brandy Calgary Apparel ULC, Brandy Edmonton Apparel ULC, Brandy Granville Apparel ULC, Brandy Melville Canada Limited, Paolo Simeone, and Franco Sorgi

Respondent (Defendant):
Y.Y.G.M. SA

Before: Rohit Parghi

Counsel:

• Rachel Laurion and T. Gnanatheevam, Counsel for the Plaintiffs
• David J. Wilson and Christopher Bialkowski, Counsel for the Defendant

Heard: 2025-03-27

Endorsement

Introduction

[1] The Defendant Y.Y.G.M. SA (“YYGM”) brings two motions. The first is a motion for summary judgment on the basis that the limitation periods for the claims brought against it have lapsed under section 4 of the Limitations Act, 2002. The second is a motion under rule 21.01(3)(c) of the Rules of Civil Procedure (the “Rules”) on the basis that another proceeding is pending in another jurisdiction between the same parties in respect of the same matter. In substance, the second motion argues that the Plaintiffs have improperly commenced a multiplicity of proceedings and that this is an abuse of process.

[2] Although YYGM’s factum purports to raise a wide range of other issues and request additional relief, the parties now agree that those additional issues and heads of relief are not properly before me and that I am not to consider them. I am instead to focus only on the various limitation period arguments and the multiplicity of proceedings issue.

[3] For the reasons below, I dismiss YYGM’s motions.

Background

[4] The individual Plaintiffs, Mr. Sorgi and Mr. Simeone, are the directors of all the corporate Plaintiffs. At the time they entered into the agreements in dispute in this action, they lived in California.

[5] The Defendant, YYGM, is a corporation organized under the laws of, and with its primary place of business in, Switzerland. It owns the trademarks and intellectual property of the fashion brand “Brandy Melville” and licenses its intellectual property to operators of Brandy Melville stores. Its owner and director is Yvan Marsan.

[6] YYGM operated a Brandy Melville store in Santa Monica, California, together with Bastiat USA, Inc. (“Bastiat”), a Nevada corporation that, among other things, managed Brandy Melville stores in the U.S., shipped merchandise to the corporate Plaintiffs, and created labels for Brandy Melville merchandise. The owner of Bastiat is Stephan Marsan, Yvan Marsan’s brother. The Marsan brothers, Mr. Simeone, and Mr. Sorgi met one another because the Santa Monica store was located beside a restaurant owned by Mr. Simeone and Mr. Sorgi.

[7] Starting in 2012, the Plaintiffs entered into a series of written and oral licensing agreements with YYGM, whereby YYGM would grant them the right to sell Brandy Melville merchandise in Canada. The merchandise was manufactured and sold by Konkay Burriku, LLC (“Konkay”). Mr. Simeone and Mr. Sorgi went on to establish Brandy Melville stores in several locations in Canada. They established a British Columbia unlimited liability corporation for each such store. Those corporations are the corporate Plaintiffs.

[8] YYGM’s conduct pursuant to those agreements is now at issue in this litigation. The Plaintiffs primarily allege negligent misrepresentation and breach of contract on the part of YYGM. They also plead promissory estoppel.

The Motion for Summary Judgment

The Law

[9] On a motion for summary judgment, I must first determine, based only on the record before me, whether there is a genuine issue requiring a trial. If there appears to be a genuine issue requiring a trial, I am to determine if the need for a trial could be avoided by using my enhanced powers under either rule 20.04(2.1) or 20.04(2.2) of the Rules. Rule 20.04(2.1) empowers me to weigh evidence, evaluate a deponent’s credibility, and draw reasonable inferences from the evidence. The power set out in rule 20.04(2.2) allows me to order that oral evidence be presented by one or more parties. I may use these powers at my discretion, as long as their use is not contrary to the interests of justice – that is, as long as they will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole (Hryniak v. Mauldin, 2014 SCC 7, para 66).

[10] The responding party must set out, by affidavit or other evidence, specific facts that show there is a genuine issue requiring a trial (r. 20.02(2)). I am entitled to presume that the parties have put forth their best evidence on the motion and that if the case were to proceed to trial, no additional evidence would be presented (TD Waterhouse Canada Inc. (TD Waterhouse Private Investment Advice) v. Little, para 15, citing Rogers Cable TV Ltd. v. 373041 Ontario Ltd.).

[11] Summary judgment will be appropriate where (1) I am able to make the necessary findings of fact, based on the record and my enhanced powers under rules 20.04(2.1) and 20.04(2.2); (2) I am able to apply the law to the facts; and (3) the motion process is a proportionate, more expeditious, and less expensive means to achieve a just result than going to trial (Hryniak, para 49).

[12] YYGM’s motion for summary judgment is based on the claim that the limitation periods for the Plaintiffs’ claims against it have lapsed under the Limitations Act, 2002. The Court of Appeal for Ontario, in Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, para 35, confirmed that in a motion for summary judgment based on a limitation period, I am to determine whether the record before me enables me to make the following findings of fact, with the degree of certainty required by Hryniak:

a. The date on which the plaintiff is presumed to know the matters listed in subsections 5(1)(a)(i)-(iv) of the Limitations Act, 2002, i.e., that the injury, loss or damage had occurred, that it was caused by or contributed to by an action or omission by the person against whom the claim is made, and that a proceeding would be an appropriate means to seek to remedy it;

b. the date on which the plaintiff acquired this actual knowledge under s. (5)(1)(a), in the event the evidence proves the contrary of the presumptive date;

c. the date of objective knowledge under s. 5(1)(b), based on the reasonable person with similar abilities and circumstances analysis; and

d. which of the actual knowledge and objective knowledge dates is earlier, for that will be the day on which the plaintiff discovered the claim for purposes of applying the basic limitation period.

[13] The onus lies on YYGM to show there is no genuine issue requiring trial with respect to the expiry of each of the limitation periods at issue (AssessNet Inc. v. Taylor Leibow Inc., 2023 ONCA 577, para 34; Clearway Construction Inc. v. The City of Toronto, 2018 ONSC 1736, para 55). The Plaintiffs do not have to have perfect or complete knowledge for the limitation period to start running. Rather, they must have “enough facts on which to base [their] allegations” (The Investment Administration Solution Inc. v. Silver Gold Glatt & Grossman LLP, 2011 ONCA 658, para 15).

Whether the Negligent Misrepresentation Claim is Statute-Barred

[14] The first limitation period issue relates to the negligent misrepresentation claim. The Plaintiffs state that Yvan Marsan and Stephan Marsan, as representatives of YYGM or its agents, Bastiat and Konkay, misrepresented to Mr. Sorgi and Mr. Simeone that the merchandise they were purchasing was manufactured in the United States and accordingly fell under the North America Free Trade Agreement (“NAFTA”) and did not require the payment of duties when shipped to Canada. In fact, the merchandise was not all manufactured in the United States and was subject to duties. In August 2019, the Canada Border Services Agency determined that the corporate Plaintiffs were liable for fees, interest, and penalties associated with the improper designation of origin on their products. The Plaintiffs claim that, because of the misrepresentation, they missed the opportunity to factor in duty costs when setting prices for their customers, and therefore had to absorb those costs themselves.

[15] YYGM states that the negligent misrepresentation claim is governed by Ontario law and that the limitation period under Ontario law has now passed. It submits that there is no genuine issue requiring trial on this point and that the negligent misrepresentation claim should accordingly be struck as being statute-barred. In support of its position, YYGM states that the Plaintiffs have “admitted” in their Statement of Claim that the negligent misrepresentation occurred in Ontario. This purported admission is found in paragraph 50(c) of the Statement of Claim, which pleads that service of the claim outside of Ontario is justified in part on the basis of rule 17.02(g) of the Rules, and the fact that “the claims herein relate to torts committed in Ontario as set out above”.

[16] I am unable to agree with YYGM’s position.

[17] An admission in a pleading must be “an unambiguous deliberate concession made by the party pleading it to a position taken by the opposing party” (Zanini v. DiPasquale, 2025 ONSC 840, para 25). What the Plaintiffs have pleaded does not rise to this level. It cannot reasonably be construed as an admission, particularly when read in conjunction with the other facts throughout the Statement of Claim that describe a dispute that is multijurisdictional in nature. These pleaded facts include, for example, that the store operating entities were incorporated in B.C. and transacted business in Ontario, B.C., Alberta, Quebec, and throughout Canada; that YYGM is a Swiss corporation; that the contracts at issue were executed in California; and that the NAFTA certifications were signed in California.

[18] Nor does the record support YYGM’s position. The tort of negligent misrepresentation occurs where the recipient receives the misrepresentation and relies on it to make a particular decision or take a particular action (Central Sun Mining Inc. v. Vector Engineering Inc., 2013 ONCA 601, paras 30-34). YYGM refers me to no evidence that would suggest that Mr. Sorgi and Mr. Simeone were in Ontario either when the alleged misrepresentations were made to them, or when they made their decisions on pricing. To the contrary, the record indicates that they were living in California when Yvan Marsan and Stephan Marsan told them that the merchandise was made in the United States.

[19] As such, the record does not support YYGM’s claim that the tort of negligent misrepresentation took place in Ontario. The record in fact suggests the opposite. Whether the negligent misrepresentation claim is governed by, and statute-barred under, Ontario law, as YYGM claims, is therefore a genuine issue requiring trial.

Whether the Two Breach of Contract Claims are Statute-Barred

[20] YYGM also raises limitation period issues in respect of two distinct breach of contract claims advanced by the Plaintiffs: that YYGM terminated its agreements with the corporate Plaintiffs in a manner not permitted by the agreements, and that YYGM breached an exclusivity provision of the agreements.

[21] In total, there are ten agreements between the parties: six written agreements (involving stores on Queen Street in Toronto and in Montreal, Newmarket, Yorkdale Mall in Toronto, Vancouver, and Scarborough), and four oral agreements (involving stores in Ottawa, Mississauga, Calgary, and Edmonton). All six written agreements were prepared by YYGM’s legal counsel and entered into between approximately April 2012 and July 2013. All four oral agreements were entered into in 2013 and were never documented. Below, I consider whether the limitation period for breach of contract claims has passed for the written and oral agreements and for each of the two breach of contract claims.

The Written Agreements

[22] The parties characterize their written agreements differently.

[23] The Plaintiffs’ evidence is that all six written agreements had the same terms, including the governing law clause, renewal provision, and exclusivity provision relevant to this motion and described below. The Plaintiffs’ motion materials include complete agreements, consisting of a main “Licensing Agreement” together with a “Schedule to Licensing Agreement,” for four stores: Queen Street, Montreal, Newmarket, and Yorkdale Mall. The Plaintiffs provide the Schedules alone for the Vancouver and Scarborough stores and attest that they are unable to locate the main Licensing Agreements for those two stores. They further attest that all six written agreements were intended to contain the same terms.

[24] YYGM appears to take the position that there are two forms of written agreement: a long-form agreement for each of the Queen Street, Montreal, Newmarket, and Yorkdale Mall stores, and a short-form agreement for the Vancouver and Scarborough stores. YYGM appears to suggest that the long-form agreements contain the governing law clause, renewal provision, and exclusivity provision, but the short-form agreements do not.

[25] I reject YYGM’s argument. I do so relying on my augmented power under rule 20.04(2.1) to weigh evidence and draw reasonable inferences from the evidence. The documentary record indicates that what YYGM calls the short-form agreement is in fact the “Schedule to Licensing Agreement”. It is highly unlikely that, as YYGM suggests, a document entitled “Schedule to Licensing Agreement” would comprise a commercial agreement in its entirety, particularly when the parties have entered into four other agreements in which that same Schedule does not form the agreement in its entirety. It is far more likely that, as the Plaintiffs state, all six written agreements contain the same Schedule and contain a main agreement, and that the Schedule is the only portion of the agreement that can be located for two of the stores.

[26] YYGM also contests the suggestion that the six written agreements contain the same terms. It attempts to distinguish among the various agreements in its affidavit materials, based on such considerations as when the agreements were entered into.

[27] Again, I reject this argument. YYGM tendered its affidavit evidence at a time when the Plaintiffs had only located and served one complete agreement, not four. YYGM therefore did not have the benefit of the more complete documentary record now available. Its suggestion that the written agreements all vary from one another is not supported by a plain reading of the agreements, which makes clear that all four agreements indeed contain the same terms, including the governing law clause and renewal provision, and that all six agreements contain the exclusivity provision, which is found in the Schedules, all six of which are before me. In my view, the fact that all four available written agreements between the parties contain the same terms renders it highly likely that the remaining two written agreements between the same parties, and entered into during the same time frame, also contain the same terms. This conclusion is supported by the Plaintiffs’ affidavit evidence that the agreements were intended to be identical in substance, and by the fact that YYGM’s evidence to the contrary is vaguely worded and is not grounded in the actual language of the contracts. In my view, weighing this evidence as a whole, it is reasonable to draw the inference that all six written agreements contain the governing law, renewal provision, and exclusivity provision at issue. I am permitted to draw such an inference under rule 20.04(2.1).

[28] I accordingly find that all six written agreements contain the same terms, including a governing law clause, renewal provision, and exclusivity provision. I do not accept YYGM’s suggestion that the agreements vary from one another, and that some contain these provisions while others do not.

[29] Even if I am mistaken, YYGM’s motion would still be defeated. If the parties were unable to conclusively say what is or is not in the agreements for the Vancouver and Scarborough stores, and I were unable to determine that question based on my augmented summary judgment powers under the Rules, that would mean that substantive content of the agreements at issue is a genuine issue requiring trial.

[30] I now turn to consider YYGM’s motion for summary judgment of the Plaintiffs’ claims that it breached the written agreements.

[31] Each written agreement provides that it is to “be construed in accordance with, and be governed by the laws of the State of Connecticut”. YYGM has agreed through its counsel that a breach of contract claim in respect of a written contract has a six-year limitation period under Connecticut law.

[32] However, YYGM asserts, perplexingly, that Connecticut was selected “randomly” by its own lawyer as the governing jurisdiction in the agreements, and that therefore no weight should be placed on the governing law provisions in the agreements. Instead, Ontario law, and the two-year limitation period under the Limitations Act, 2002 govern the agreements.

[33] No evidence is offered in support of YYGM’s assertion that the choice of law was made “randomly” by its own counsel. The parties to an agreement are presumed to agree to its terms. A choice of law clause is generally to be honoured by the courts so long as it is bona fide, legal, and not contrary to public policy (Douez v. Facebook Inc., 2017 SCC 33, para 70). No evidence is offered to suggest that the choice of Connecticut law was not bona fide or otherwise should not be given effect to by the courts.

[34] YYGM suggests that Connecticut has no connection to the parties’ places of residence or where the agreements would be performed. But even if that is true, as the Court of Appeal for Ontario has held, “[many] commercial contracts today contain choice of law clauses. That choice often bears no relationship to where the contract is to be carried out” (405341 Ontario Limited v. Midas Canada Inc., 2010 ONCA 478, para 45).

[35] As such, the record does not support YYGM’s claim that the governing law clauses in the agreements are unenforceable, and that Connecticut law accordingly does not apply. To the contrary, the express language of the agreements provides that they are governed by Connecticut law. YYGM provides no evidence to persuade me otherwise. Whether, as YYGM asserts, the governing law clauses are unenforceable such that Ontario law applies is therefore a genuine issue requiring trial.

[36] The Plaintiffs submit that the doctrine of promissory estoppel bars YYGM from relying on the Ontario limitation period. They point out that YYGM’s own lawyer drafted the agreements and chose Connecticut law as the governing law, the parties operated under the agreements for approximately six years without YYGM ever questioning their enforceability, and YYGM relied on the agreements in its letter purporting to terminate the corporate Plaintiffs’ leases, as discussed below. The Plaintiffs assert that, because of YYGM’s conduct, they had no reason to ever doubt the validity of the agreements, including their governing law clause, and therefore had no reason to believe that they were subject to a two-year limitation period. YYGM is therefore estopped from relying on the two-year limitation period under Ontario law. YYGM disputes the claim of promissory estoppel, asserting, for instance, that it lacks a basis in law because it never made a clear promise to renew any of the agreements.

[37] The record provides some support for the factual assertions underlying the Plaintiffs’ promissory estoppel claim. It is uncontested that it was YYGM’s counsel who drafted the agreements and chose Connecticut law as the governing law. There is no evidence to suggest that YYGM ever questioned the agreements’ enforceability before making this argument in this litigation. The letters that YYGM sent to the corporate Plaintiffs terminating their leases expressly invoke the written agreements. The fact that there is support for the factual assertions underlying the Plaintiffs’ promissory estoppel claim underscores that the enforceability of the governing law clauses is a genuine issue requiring a trial.

[38] If indeed the Plaintiffs are correct that Connecticut law applies, then, in my assessment, both breach of contract claims were commenced well within the six-year limitation period that governs the claims involving the written agreements.

[39] The first breach of contract claim advanced by the Plaintiffs relates to the termination of the agreements in November 2018. The written agreements provided that, if the corporate Plaintiffs are in “full compliance” with the agreements’ terms and conditions, the parties “shall enter into good-faith negotiations” for the renewal of the agreements for five years, “on the same terms and conditions as those set forth herein”. The Plaintiffs assert that the parties agreed to five-year extensions to the agreements, which YYGM denies. It is uncontested that YYGM terminated, or purported to terminate, the agreements on November 7, 2018. The Plaintiffs allege that YYGM breached the renewal provision in the agreements by doing so.

[40] The six-year limitation period on this claim started running on the date of the allegedly improper termination of the agreements, November 7, 2018. The Plaintiffs’ claim was commenced on January 18, 2022, well within that limitation period. As such, whether this claim was commenced outside of the applicable limitation period, as YYGM claims, is a genuine issue requiring trial.

[41] The second breach of contract claim asserts that YYGM sold Brandy Melville branded products in Canadian Nordstrom retail stores, contrary to the agreements’ provisions on exclusivity. The Plaintiffs say that they learned of the sales in late 2015 or early 2016, promptly raised the issue with YYGM, and were reassured that the situation would be resolved, but the sales nonetheless continued until May 2017. YYGM states that the sales stopped around 2015.

[42] The six-year limitation period on this claim began running on the date when the sales to Canadian Nordstrom in breach of the exclusivity provision of the agreements stopped. Because that date is disputed, whether the limitation period has passed is a genuine issue requiring trial. On the Plaintiffs’ version of events, the action was commenced in time under Connecticut law: January 18, 2022 is well within six years of May 2017. If, however, as YYGM claims, the sales stopped in 2015, then the action may have been commenced out of time. The date on which the sales stopped is disputed between the parties and cannot be determined based on the record before me, to the degree of certainty required by Hryniak. Such a determination would require a full evidentiary record at trial and an evaluation of the credibility of the witnesses who have knowledge of the sales to Canadian Nordstrom. As such, whether the limitation period for this claim has elapsed is a genuine issue requiring trial.

The Oral Agreements

[43] The Plaintiffs say that the oral agreements were intended to be functionally identical to the written agreements. YYGM disagrees. In turn, the parties disagree as to whether the oral agreements were governed by Connecticut law, as the written agreements were, and whether there were renewal provisions and exclusivity requirements in the oral agreements, as there were in the written agreements.

[44] There is competing evidence in the record on whether the oral agreements were intended to functionally replicate the written agreements, as the Plaintiffs claim. This is an important factual issue on which the record before me does not enable me to make a finding to the degree of certainty required by Hryniak. It can only be determined at trial with the benefit of oral evidence from the parties who negotiated the oral agreements, and with the opportunity to assess the credibility of that evidence.

[45] Additionally, if the oral agreements were governed by Connecticut law, there is no evidence before me as to the limitation period applicable to the oral agreements under Connecticut law. This, too, is a genuine issue requiring trial. It requires expert evidence on the applicable limitation period under the laws of another jurisdiction; such evidence is not before me on this motion.

Conclusion on Motion for Summary Judgment

[46] Accordingly, I dismiss YYGM’s motion for summary judgment in respect of the negligent misrepresentation claim and in respect of both breach of contract claims. There are genuine issues requiring trial in respect of all these claims.

The Motion to Dismiss the Action as an Abuse of Process

The Law

[47] YYGM also brings a motion to dismiss this action on the basis of rule 21.01(3)(c), which provides that a defendant may move to have an action stayed or dismissed on the ground that another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter. YYGM in effect argues that this claim is an abuse of process because the Plaintiffs have commenced several proceedings arising from the same set of facts: an original action commenced in California, a second one currently ongoing in Nevada, and this action.

[48] The California action was commenced by the Plaintiffs in 2020, originally against Bastiat and Konkay and then also against YYGM. Bastiat and YYGM argued, successfully, that the California courts did not have jurisdiction over them, and the California action was accordingly dismissed in September 2021.

[49] The Nevada action was started in October 2021 against Bastiat. The Plaintiffs’ evidence is that they did not name YYGM as a defendant in the Nevada action because they anticipated that YYGM would make the same jurisdiction argument that it had made in the California action. The Nevada action is currently scheduled for trial in June 2025.

[50] This action was commenced in January 2022 against YYGM alone. The Plaintiffs say that this action is an “alternative” claim and a “fallback” option that they will pursue only if the court in the Nevada action decides that Bastiat is not the correct Defendant and liable to the Plaintiffs.

[51] Consistent with the Plaintiffs’ characterization of this litigation as a “fallback” option that they do not wish to actively pursue, the record indicates that, in October 2022, the Plaintiffs advised YYGM, through their respective counsel, that they wished to effectively place this action in abeyance pending the outcome of the Nevada action. The record also reflects that, despite this overture, YYGM has taken steps in this action, including delivering its Statement of Defence and bringing these motions and an earlier motion. In doing so, YYGM has presumably attorned to the jurisdiction of this court and appears to have incurred legal costs that it could have deferred or avoided altogether.

[52] I reject YYGM’s claim that this action is improper under rule 21.01(3)(c).

[53] Whether to dismiss or stay an action under rule 21.01(3)(c) as an abuse of process is an exercise of the court’s discretion. The Court of Appeal has described the applicable analytical framework as follows (Birdseye Security Inc. v. Milosevic, 2020 ONCA 355, paras 15-16):

The determination of whether a stay of proceedings should be granted because another proceeding is pending between the same parties involves an exercise of discretion, taking into consideration the circumstances of the particular case. The moving party must demonstrate that the continuation of the action would cause it substantial prejudice or injustice (beyond inconvenience and expense) because it would be oppressive or vexatious or would otherwise be an abuse of the process of the court, and that the stay would not cause an injustice to the responding party […]. Factors relevant to prejudice include: the likelihood and effect of the two matters proceeding in tandem, the possibility and effect of different results, the potential for double recovery, and the effect of possible delay […].
The fact that another proceeding is pending between the same parties in respect of the same subject matter does not automatically lead to an order dismissing or staying the claim. Rather, the order is discretionary and the judge hearing the motion must be satisfied that the stay or dismissal is warranted in the particular circumstances of the case. While a multiplicity of proceedings may constitute an abuse of process which warrants an order staying or dismissing a proceeding […], that is not necessarily always the case. All of the circumstances must be considered to determine whether, in the interests of justice, a stay or dismissal should be granted.

[54] More recently, in Cashin Mortgages Inc. (Verico Cashin Mortgages) v. 2511311 Ontario Ltd. (Mortgages Alliance – Main Street Mortgages), 2024 ONCA 103, the Court of Appeal observed that rule 21.01(3)(c), like rule 21.01(3)(d), “invoke[s] the doctrine of abuse of process,” which

[…] has been applied to prevent a multiplicity of proceedings or the re-litigation of an issue, such as in the commencement of another proceeding that replicates the same or similar issues and is against some or all the same parties. Various policy grounds are cited in the application of the doctrine of abuse of process: to ensure that no one should be “twice vexed by the same cause”, to “uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice” […]. It is a flexible doctrine that “evokes the ‘public interest in a fair and just trial process and the proper administration of justice’”, and, as a result, “engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute” […].

[55] As a preliminary matter, it is not clear to me precisely where the alleged multiplicity of proceedings lies as far as YYGM is concerned. The California action has been dismissed. The Nevada action is against Bastiat alone. This is the only existing action naming YYGM as a defendant. There are no two actions between the same parties. There is no “multiplicity” of proceedings. Rule 21.01(3)(c) therefore does not properly apply (Howlett v. Northern Trust Company, 2023 ONSC 4531, para 63, citing Sun Life Assurance Co. of Canada v. Yellow Pages Group Inc., 2010 ONSC 2780).

[56] Moreover, YYGM has not persuaded me that it would experience any substantial prejudice or injustice if this action were to continue. The Plaintiffs have offered to place this action in abeyance. YYGM has, for reasons that remain unexplained, declined to take the Plaintiffs up on their offer, not only defending the action but bringing three motions in respect of it. In these circumstances, I am unable to see how the two matters would proceed in tandem, how different results could be possible, how there could be double recovery, or how there could be any delay, unless YYGM, against all reason, insists on moving this action forward when the Plaintiffs have offered to hold it in abeyance. YYGM demonstrates no prejudice at all, let alone prejudice of the Plaintiffs’ creation.

[57] Nor do I see, looking at the litigation as a whole, any evidence that the Plaintiffs commenced this action simply to try to improperly relitigate issues that have been decided, frustrate the litigation process, or gain some improper tactical advantage. YYGM is not being “twice vexed” by the same cause, having disposed of the California action against it early on, on jurisdictional grounds, and not being a defendant in the Nevada action. The administration of justice is not undermined by allowing this action to continue.

[58] In these circumstances, I see no basis on which to exercise my jurisdiction to stay or dismiss this action.

Other YYGM Claims

[59] YYGM makes several submissions to the effect that there is no factual or legal basis for the claims against it. It states, for instance, that the negligent misrepresentation claim is not made out because the agreements contain no representation as to where the merchandise was being manufactured. It states that the claim that it wrongfully terminated the agreements lacks merit because YYGM was under no legal obligation to renew the agreements and made no promise to do so. It suggests that the allegation of negligent misrepresentation should instead be made against Konkay and that the claim of breach of the exclusivity provision of the agreements should instead be advanced against the third-party retailer that it says was responsible for shipping the merchandise to Nordstrom Canada.

[60] It is not clear on what basis YYGM advances these arguments. They do not pertain to the limitation period arguments underlying the summary judgment motion. They have nothing to do with the abuse of process motion. If YYGM wished to assert that there is no factual or legal basis for the claims against it, it should have done so based on one of the many Rules appropriate for that purpose. It cannot properly seek to advance those claims under the banner of these motions. I do not consider these claims.

Conclusion

[61] For the reasons above, I dismiss both the motion for summary judgment and the motion to dismiss or stay this action under rule 21.01(3)(c).

Costs

[62] In exercising my discretion to fix costs on these motions and the action under section 131 of the Courts of Justice Act, I may consider the factors enumerated in Rule 57.01 of the Rules. Those factors include the result achieved, the amounts claimed and recovered, the complexity and importance of the issues in the proceeding, the principle of indemnity, the reasonable expectations of the unsuccessful party, and any other matter relevant to costs. I am also to “step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable”. The overarching objective is to fix an amount for costs that is objectively reasonable and fair for the unsuccessful party to pay, and to balance the successful party’s compensation with the goal of fostering access to justice (Boucher v. Public Accountants Council (Ontario), paras 26 and 37).

[63] In applying these factors, I note the following:

a. The Plaintiffs were entirely successful on this motion. They are accordingly presumptively entitled to their costs on the motion.

b. YYGM attempted to expand the scope of the motion considerably beyond the scope of its Notice of Motion and the Plaintiffs were forced to spend time addressing this improper expansion of the motion;

c. The Plaintiffs proposed placing the action in abeyance pending resolution of the Nevada proceedings, and YYGM declined this offer, instead choosing to proceed with several litigation steps, including this motion, all of which increased the costs to both parties. It is appropriate for YYGM to indemnify the Plaintiffs for the costs that the Plaintiffs incurred in this motion as a result of YYGM’s decision to commence and pursue the motion; and

d. The time spent by Plaintiffs’ counsel in the motion was reasonable, especially having regard to the range of issues involved and the somewhat expansive nature of the allegations made. Their hourly rates are reasonable. Work was appropriately allocated among counsel team members having regard to their seniority. The costs amounts that the Plaintiffs seek are accordingly reasonable. Indeed, the amount the Plaintiffs seek is extremely close to the amount the Defendants sought in the event of their success, which further underscores that the amount is reasonable and within the expectation of the Defendants.

[64] Based on the above, I consider it appropriate to award costs the Plaintiffs their costs, on a partial indemnity basis, in the amount sought of $47,640.84, all-inclusive, to be paid within 30 days. In my view, this costs award reflects the principles set forth in Rule 57.01 and is fair and reasonable in all the circumstances.

Rohit Parghi
Date: May 21, 2025