Court File and Parties
Court File No.: CV-25-00747693-0000 Date: 2025-09-16 Ontario Superior Court of Justice
Between: 1654199 Ontario Limited and 1888818 Ontario Limited, Plaintiff – and – The Rekai Centres, Defendant
Counsel: Mitchell Wine, for the Plaintiff Christopher Stanek, for the Defendant
Heard: In Writing
Papageorgiou J.
Costs Endorsement
Overview
[1] I dismissed a motion for an injunction.
[2] The Respondent seeks costs in the amount of $116,344.59 which in part reflects a claim for substantial indemnity costs after it made offers to settle.
Decision
[3] For the reasons that follow, I order that costs be in the cause.
Issues
Issue 1: Should costs be in the cause because this was an injunction motion that was dismissed?
Issue 2: Is there another basis to reserve costs to a later date?
Analysis
Issue 1: Should costs be in the cause because this was an injunction motion that was dismissed?
[4] The Applicant argues that costs should be reserved to the trial judge relying on a line of cases that hold that this is appropriate where an injunction has been granted. [Emphasis added]
[5] In Quizno's Canadian Restaurant Corporation v. 145097 Ontario Corp at para 10 Perell J. observed that an order of costs in the cause in interlocutory injunctions "allows the court to have the benefit of hindsight and to avoid the possible injustice of awarding costs to a plaintiff for having succeeded in obtaining an order to protect his or her position pending trial when the outcome of the trial reveals that the plaintiff's position was not worthy of having been protected."
[6] The Applicant also cites Accreditation Canada International v. Guerra 2016 ONSC 6184 at para 9, leave to appeal denied, 2017 ONSC 932, for this proposition where the court held costs should be reserved to a later date citing Sharpe J.A., Injunctions and Specific Performance where he stated:
Where the defendant successfully resists the plaintiff's motion for an interlocutory injunction, costs may be awarded forthwith. It has been held that where the motion was groundless and based upon unfounded allegations of fraud, deceit and conspiracy, it may be appropriate for the court to fix the costs on a solicitor and client scale and require that they be paid forthwith. On the other hand, it would be unusual to award costs of an interlocutory injunction motion to the successful plaintiff prior to trial. As there has been no final determination of the rights of the parties, but rather an order to protect the plaintiff's position pending trial, the preferable course is to reserve the question of costs to the trial judge. [Emphasis added]
[7] However, as noted, Sharpe J.A. had specifically stated that where a Respondent successfully dismisses an injunction motion, costs may be awarded forthwith.
[8] The Respondent cites a number of cases which hold that costs on injunction motions should be paid forthwith when an injunction motion is dismissed. It is this line of cases appropriate in this case.
[9] In Cana International Distributing Inc. v. Standard Innovation Corp, 2011 ONSC 752, Justice MacKinnon wrote:
In my opinion, absent extraordinary circumstances, costs on an unsuccessful interlocutory injunction application should be payable forthwith. An application for an injunction is a discrete legal remedy involving substantial costs. There is no reason that costs should not follow the event where the application is unsuccessful. There is never an assurance that there will be a trial, particularly in circumstances where an injunction is not in place. I agree with the submission of the defendant that the general approach in the recent caselaw is that when a plaintiff seeking an injunction is unsuccessful, costs should be ordered paid forthwith in any event of the cause.
[10] See also McGrath v. Desai, 2024 ONSC 1961 at para. 16 where Vermette J. observed:
In cases where an injunction has been denied, it is generally appropriate that costs be fixed and ordered payable within 30 days, in accordance with Rule 57.03 of the Rules of Civil Procedure.
[11] Therefore, an award of costs in the cause is not appropriate in this case simply on the basis of the cases cited by the Applicant.
Issue 2: Is there another basis to reserve costs to a later date?
[12] On June 25, 2025, the Applicant became aware that the Respondent intended to begin construction and close the Laneway for three months in five weeks' time on August 1, 2025.
[13] Counsel attempted to engage with the Respondent's counsel without success.
[14] The parties then appeared before Des Rosiers J. on July 11, 2025 who scheduled the return of the motion for August 7, 2025. The Applicant's materials were to be completed by July 18, 2025 and the Respondent's materials were to be completed by July 25, 2025.
[15] The Respondent then unilaterally reduced the width of the Laneway to 11 feet on July 16, 2025.
[16] The parties engaged in extensive negotiations from the date the motion was scheduled until the date of the hearing. The Respondent then delivered an Undertaking to respond to the Applicant's concerns and which was incorporated into Offers to Settle dated July 30 and 31, 2025.
[17] I have referenced this Undertaking in my decision.
[18] While the Respondent argues that it should obtain substantial indemnity costs because of these Offers to Settle, the Undertaking, reflected in the Offers to Settle, was part of the reason why I concluded that the Applicant could not demonstrate irreparable harm. See paragraph 26 on my decision where the Respondent's new intended restrictions on the use of the Laneway are set out. It is these restrictions that I analyzed in my decision.
[19] At the argument, the Respondent also submitted that it was prepared to give the Applicant a reasonable time to reconfigure its property and the dismissal was on the term that the Applicants would have a reasonable time to do so.
[20] In the circumstances, costs should be in the cause as requested by the Applicant.
Papageorgiou J.
Date: September 16, 2025