374427 Ontario Ltd v. Sommerset Communities Inc.
[2015] O.J. No.4798
2015 ONSC 5743
Newmarket Court File No.: CV-14-121232-00
Ontario Superior Court of Justice
P.A. Douglas J.
Heard: August 4, 2015.
Judgment: September 17, 2015.

Counsel:
Paul Dollak, for the Plaintiff (Moving Party)   
Arina Joanisse, for the Defendants Sommerset Communities Inc., Giulio Bianchi and Elgin House Properties Limited, Responding Parties

Ruling on Costs:
1   On August 7, 2015, [2015] O.J. No. 4234 I released my Ruling on Motion heard by me on August 4, 2015.

2  In that motion the Plaintiff moved for an interlocutory injunction preventing the Defendants (excluding Eisen and herein after referred to collectively as "the Defendants"), from entering onto the subject property, an order directing restoration of the property and police assistance as necessary to enforce such orders.

3  Given that a central issue in the motion was whether the Plaintiff has an interest in the property, and this issue was shared with a motion brought by the Defendants to vacate the Certificate of Pending Litigation expected to be heard in October 2015, I decided essentially to preserve the status quo pending the hearing of that motion in October of 2015 by enjoining the Defendants from entering on the property except with the written permission of the Plaintiff's counsel or further order. I further ordered that the order expire at 4:30 p.m. on the day the Defendants' motion to vacate the Certificate of Pending Litigation is heard unless extended by further order of the court.

4  The Plaintiff submits that it was successful on the motion and costs should follow the result. It is further submitted that the Defendants conducted themselves in a high-handed manner and accordingly substantial indemnity costs fixed in the amount of $20,314.40 are warranted.

5  The Defendants submit that costs should be reserved to the judge hearing the adjourned interlocutory injunction motion and the CPL motion. It is further submitted that the Plaintiff did not obtain the "relief sought" in its Notice of Motion in that the Plaintiff did not request interim relief until the hearing of its CPL motion, it only sought relief pending resolution of the action and this was not granted.

6  The Defendants submit that when interim injunctions are granted until the return of an adjourned interlocutory injunction motions, costs are routinely left to the judge hearing the adjourned motions (see Carleton University v. Mercier 2000 CarswellOnt 1456 ONSC, Compes International Ltd. v. Ingraldi 2007 CarswellOnt 9200 ONSC and Keybrand Foods Inc. v. Guinchard 1990 CarswellOnt 856 ONSC).

7  In the foregoing circumstances I accept the Defendant's submission that it is appropriate to reserve the issue of costs of the motion heard before me to the judge dealing with the motion on its return in October 2015, or whenever the CPL motion is heard. My intention was simply to preserve the status quo without delving deeply into the merits of the Plaintiff's motion. A more fulsome appreciation of the merits of the motion is required before success on the motion can be properly measured.

8  Therefore, costs of the motion heard by me on August 4, 2015 are reserved to the judge hearing the motion on its return.

P.A. DOUGLAS J.