Court File and Parties

Court File No.: CV-24-00722958-0000 Date: 2025-10-27 Superior Court of Justice - Ontario

Re: Kimberley Jackson and Distinctly Patio Inc., Applicants And: Steven Jackson, Peter Jackson and 2131376 Ontario Ltd. operating as Think Patio, Respondents

Before: Akazaki J.

Counsel:

• Gregory Sidlofsky and Jake Palace, for the Applicants
• Payam Ezzatian, for the Respondent Steven Jackson and 2131376 Ontario Ltd.
• Alexander Verrilli, for the Respondent Peter Jackson

Heard: July 24, 2025, with written submissions

Costs Decision

[1] This costs decision follows my orders of September 23, 2025, released as 2025 ONSC 4703. The applicants seek costs of $65,000 based on a legal bill of $115,110. Steven Jackson and 2131376 Ontario Ltd. seek $58,407, based on a legal bill of $93,185. Peter Jackson claims $21,719, based on a legal bill of $33,014.

[2] In my substantive decision, I ordered certain disclosures from Steven Jackson, to enable Distinctly Patio Inc. (DPI) to determine whether it was worth its while to proceed with an accounting reference for disgorgement of profits by 2131376 Ontario Ltd. in breach of a non-competition provision in the DPI shareholders agreement. In all other respects, I dismissed Kimberley Jackson and DPI's application. I granted Peter Jackson's counterapplication, to the extent of an order requiring DPI to redeem his nine shares in exchange for payment by DPI to Peter of $17,167.42.

[3] All three groups of parties appear to accept that none received everything they wanted out of the litigation. Indeed, as stated in para. 70, the order that DPI redeem Peter's shares for $17,167.42 essentially achieved one of DPI's litigation aims at a reduced cost. Costs are mainly awarded based on outcome and not a distribution based on a scoresheet of issues: Seepersaud-Singh v. Pet Social, 2023 ONSC 5436, at para. 9, as well as the Court of Appeal decisions cited by A. P. Ramsay J.

[4] While the applicants and Steven Jackson referred to offers to settle, none squarely engaged the costs rule under rule 49.10. In the circumstances, no offer stood out as qualifying for an exception under rule 49.13.

[5] When the parties' written materials and arguments are weighed on the figurative market scales, the issues that seemed to weigh down the litigation and raise the family members' animosity were Kimberley Jackson's allegations of domestic abuse and misappropriation on the part of the other two family members. Whatever may have been the truth of these allegations in the family setting, she failed to prove them in aid of her constructive trust claim in the corporate-commercial dispute.

[6] In concluding that the applicants' allegations were responsible for the escalation of the litigation, I must also add that Steven Jackson's failure to communicate the details of the share transfer to son Peter was the act of poor judgment that led to the litigation at the outset. Within the delicate family business dynamic at the time, his duty to his co-shareholder and principal of DPI required a less dismissive approach to the situation.

[7] These countervailing factors between the applicants and Steven Jackson apply the criteria in paras. 57.01(1)(b) and (f) relating to the apportionment of liability and vexatious steps in the proceeding, to conclude in a finding of no costs liability between them. To the extent that Kimberley Jackson's litigation conduct increased the litigation costs for both, the fact that she spent more penalizes her by about $12,000. In that regard, denying her costs for a marginal victory compensates Steven Jackson for having to defend a host of vigorously contested factual points.

[8] Peter Jackson was caught in the fray between his parents. There is no principled reason to deny him his costs on a partial indemnity scale, in the amount of $21,719.44. I therefore award him costs of the application and the counterapplication in that amount, payable by the applicants Kimberley Jackson and DPI. There shall be no costs as between those applicants and the respondents Steven Jackson and 2131376 Ontario Ltd.

Akazaki J.

Date: October 27, 2025