Case Name:

Syncmold Enterprise Corp. v. Pinnacle Mold Inc.

Between

Syncmold Enterprise Corp., Plaintiff, and

Pinnacle Mold Inc., Elmar Dietrich, Kenneth Hedgewick, Wayne

McLaughlin, Ken Byrne, Mike Robinet, National Bank of Canada,

468464 Ontario Ltd., Denelli Enterprises Inc., Chittle

Manufacturing Consultants Inc., Hedgehog Investments Limited,

Trukent Enterprises Ltd., Wayne McLaughlin Family Enterprises

Inc., Stephen Funtig, S. Funtig and Associates Inc.,

Defendants

[2009] O.J. No. 2156

Court File No. CV-08-11002CM

Ontario Superior Court of Justice

T.L.J. Patterson J.

Heard: March 19, 2009.

Judgment: May 6, 2009.

(17 paras.)

Civil litigation -- Civil procedure -- Costs -- Assessment or fixing of costs -- Particular items -- Counsel fees -- Disbursements -- Determination of costs in relation to Syncmold's summary judgment motion -- Syncmold was successful on the motion but was not successful on varying an existing security cost award posted by Syncmold -- Syncmold was entitled to costs and sought fees and disbursements in the amount of $108,956 -- Pinnacle submitted that costs should be similar to its legal fees which amounted to $74,401 -- However, the preparatory work done for Syncmold was more complicated -- Syncmold awarded $95,000 in costs for fees and disbursements.

Statutes, Regulations and Rules Cited:

Rules of Civil Procedure, Rule 57

Counsel:

Raymond G. Colautti and Anita Landry, for the Plaintiff.

Arthur M. Barat, for the Pinnacle Defendants.

REASONS FOR JUDGMENT

1 T.L.J. PATTERSON J.:-- I have reviewed the Costs Submissions made by Mr. Colautti on behalf of the Plaintiff Syncmold and the submissions of Mr. Barat on behalf of the Defendants.

2 This motion was heard from me in December of 2008 and my decision was released in January of 2009.

3 The Plaintiff Syncmold was successful in their summary judgment motion in the sum of $1,596,566.80 and was successful in defeating the Defendant's motion to have an existing interlocutory injunction motion discontinued.

4 The Plaintiff was not successful on varying an existing security cost award posted by the Plaintiff.

5 The Plaintiff is entitled to costs and Mr. Colautti has submitted fees, disbursements and G.S.T. an account in the sum of $108,956.47 which he indicates the counsel fee portion of it was billed at a partial indemnity rate.

6 Included in the costs considerations established by Rule 57 of the Rules of Civil Procedure are that the costs should be such that the unsuccessful party could reasonably expect to pay.

7 The Defendant indicates his total legal fees including disbursements and G.S.T. for his client was $74,401.50 on a partial indemnity scale and therefore his client would expect to pay something reasonably comparable to fees incurred by his lawyer in this matter.

8 Further, Mr. Barat questions the hourly rate being suggested for Mr. Colautti and Ms. Landry being at the partial indemnity scale.

9 Further Mr. Barat questions as certain disbursements including interpreter fees, the photocopying, and mails, electronic research, agent account, secretarial costs and the request by Mr. Colautti that the fees be paid out of the funds being held by Mr. Funtig.

10 I am satisfied that the work done by Mr. Colautti was more complicated in regard to the preparation of the material for argument on the summary judgment and for the continuation of the injunctive relief. The security for issue cost issue is not overly complicated.

11 In my opinion Mr. Colautti should be entitled to the sum of $95,000.00 inclusive of fees, disbursements and G.S.T.

12 The question as to whether the costs may be paid from the funds held by the Receiver was further argued on March 19, 2009 with further written submissions. I have reviewed the further submissions and am of the opinion that the costs I have ordered payable to Syncmold not be paid out of the funds held by the Receiver.

13 It appears that even if Syncmold is unsuccessful in establishing it has a security interest, it still will be the major recipient of any unsecured funds.

14 At this stage it is yet to be determined exactly how much is available to the unsecureds. Further, it is my opinion that payment of the costs would create an unjust preference in favour of Syncmold therefore no funds for this purpose shall be paid out of the funds held by the Receiver.

15 There is a separate issue of Mr. Barat's costs being paid by the Receiver. Further to my endorsement made on March 19, 2009 it is my opinion that this question should be heard at the same time as the other outstanding issues between the parties.

16 A further motion was brought by Pinnacle related to the issue of whether amounts which relate to purchase order assigned to Chang Yi in the sum of $348,698.00 should also have been deducted from the partial summary judgment.

17 In my opinion that is a triable issue which may be dealt with the other triable issues outstanding between the parties.

T.L.J. PATTERSON J.

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