Court File and Parties

Court File No.: CV-22-00686844-0000

Heard: October 24, 2025

Superior Court of Justice – Ontario

Re: Guillevin International Co., plaintiff

And: Vandertoorn et al., defendants

Before: Associate Justice R. Frank

Counsel:

• Mark van Zandvoort and Hannah Downard for the plaintiff (moving party)
• Esmaeil Mehrabi for the non-party, Edwin Darlington (responding party)
• No one appearing for the defendants

Heard: October 24, 2025

Costs Endorsement

[1] On October 24, 2025 I heard the plaintiff's motion seeking leave to examine the non-party, Edwin Darlington pursuant to Rule 31.10. For oral reasons given on October 24, 2025, I granted the motion.

[2] Following the parties' respective costs submissions, I reserved on the issue of costs. This is my Costs Endorsement.

[3] The plaintiff seeks its costs of the motion on a partial indemnity basis in the amount of $19,926.08 inclusive of disbursements and taxes. The plaintiff submits that it tried to avoid this motion but was compelled to bring it given the refusal of both Mr. Darlington and the defendants to cooperate in providing the information sought. As such, the plaintiff submits that the bringing of the motion was reasonable in the circumstances.

[4] The plaintiff also submits that the quantum of costs sought is reasonable. The plaintiff submits that the motion materials included a motion record and supplementary motion record, factum, reply factum, and compendium. In addition, Mr. Darlington elected to cross-examine the plaintiff's representative Mr. Aron Padure, which increased the costs of the motion.

[5] The plaintiff submits that the time spent and costs it claims are reasonable in view of (1) the nature of the motion and (2) the position taken by Mr. Darlington in advance of the motion and in response to it. In this regard, the plaintiff points to Mr. Darlington's costs outline in which his partial indemnity costs are $12,313.05. The plaintiff submits that, as is often the case for a moving party, it undertook more work to prepare the motion materials than Mr. Darlington undertook as the responding party.

[6] Mr. Darlington submits that no costs order should be made because, as a non-party to the action, he had no obligation to consent to the motion. Further, Mr. Darlington submits that the relief sought on the motion was overly broad in the circumstances, and that my order permitting the examination is restricted in scope, providing narrower relief than that sought by the plaintiff in the notice of motion. As a result, Mr. Darlington submits that the plaintiff was only partially successful on the motion.

[7] Alternatively, Mr. Darlington submits that if any costs are ordered, the quantum should be reduced. In this regard, Mr. Darlington submits that the quantum listed in his costs outline should be looked at in context. Specifically, Mr. Darlington submits that because he is a non-party, his lawyer had to "get up to speed" on the proceedings and, therefore, his lawyer had to spend more time in response to the motion than the plaintiff's lawyers would have had to spend as lawyers for the moving party. Mr. Darlington also submits that the motion materials were not complex, and the time spent by the plaintiff's lawyers in respect of the cross-examination of Mr. Padure was excessive.

[8] In my view, given the overall circumstances of this motion, including that it was not opposed by the defendants, there is no basis to depart from the usual practice of awarding costs to the plaintiff as the successful party. In this regard, I find that the motion was necessary because Mr. Darlington refused to cooperate reasonably, and he took no steps to try to resolve the motion. Further, I do not consider the scope of the motion or the relief sought to have been overly broad. To the contrary, had Mr. Darlington acted in a reasonably cooperative manner, the motion could have been avoided and the parties would have been able to resolve the scope issues based on the content of the August 22, 2024 letter from plaintiff's counsel to Mr. Darlington and Core Cabling Inc.

[9] The overriding principles in determining costs are fairness and reasonableness; see Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291. In addition, I am guided by the factors set out in Rule 57.01(1) when awarding costs. I have also noted the stated purposive approach to costs as set out in 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 at paragraph 10. Costs rules are designed to (1) indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) facilitate access to justice, including access for impecunious litigants; (3) discourage frivolous claims and defences; (4) discourage inappropriate behaviour by litigants in their conduct of the proceedings; and (5) encourage settlements.

[10] Based on the parties' costs submissions and considering all relevant factors, I order Mr. Darlington to pay to the plaintiff costs fixed on a partial indemnity basis in the amount of $17,500, inclusive of disbursements and taxes, within 30 days.

Date: October 24, 2025

R. Frank Associate Justice