2013 ONSC 6170, 2013 ONSC 6170

CITATION: Rheo Thompson Candies Limited v. Thompson, 2013 ONSC 6170 COURT FILE NO.: 8900/12 DATE: 2013/10/02 SUPERIOR COURT OF JUSTICE – ONTARIO RE: Rheo Thompson Candies Limited (Plaintiff) - and - Marni Thompson, Alvin Bolkovic and M. Thompson Chocolates (Defendants) BEFORE: Justice H. A. Rady COUNSEL: David A. MacKenzie and Stephanie Legdon, for the plaintiff Simon J. Adler and Nolan Downer, for the defendants HEARD: Submissions in writing August 13, 27 & 28, 2013 COSTS ENDORSEMENT [1] I have received and reviewed the parties’ costs submissions.

The defendants seek their costs of the plaintiff’s unsuccessfulmotion for an interim injunction. In my endorsement of July 10, 2013, I had dismissed the motion because I was not persuaded that theplaintiff had established irreparable harm. I also found that the balance of convenience did not favour the plaintiff. [2] The defendants submit that they should receive substantial indemnity costs of $26,270.93 and they assert that such a scale isappropriate by analogy to rule 20.06.

Had the plaintiff been successful, from their perspective the lawsuit would likely have been over. [3] I did find that there was a serious issue to be tried arising from the defendants’ marketing of a confectionary called a mintsmoothie.

The plaintiff also markets a similar product by that name. [4] While the defendants did not concede there was a serious issue to be tried, I did not understand them to vigorously argueotherwise (correctly, in my view). [5] The individually named defendants are the daughter and son-in-law of the plaintiff’s founders and there is at least someevidence that the defendants may be using the plaintiff’s protected recipe.

I commented in paras. 13, 14 and 28 of my endorsementabout why I was satisfied there was a serious issue to be tried. [6] I recognize that as the successful party, the defendants are presumptively entitled to costs. And there is good reason to ordercosts payable forthwith on interlocutory matters unless the justice of the case suggests otherwise: Axton v. Kent (1991), (ON SC), 2 O.R. (3d) 797 (Div.

Ct.). [7] For the reasons articulated in my endorsement and in particular, the paragraphs identified above, I consider that this is one ofthose cases that “the justice of the case suggests otherwise.” [8] As a result, costs are reserved to the trial judge who will be in a better position to assess the defendants’ entitlement. “Justice H. A. Rady” Justice H. A. Rady Date: October 02, 2013