Motion to inspect property was premature because discovery had not yet taken place

Ontario civil | Civil Practice and Procedure | Costs | Costs of particular proceedings

Parties entered into licence agreement which allowed defendants to use plaintiffs’ software for generation of property inspection reports. Plaintiffs brought action alleging that defendants breached licence agreement by using software to develop their own program. Motion judge dismissed plaintiffs’ motion to inspect defendants’ property. Parties made submissions on costs. Plaintiffs were to pay costs of $48,880 to defendants within 30 days. There was no reason to depart from general rule that costs were payable to defendants, as winning party. Motion was premature because discovery had not yet taken place. There were reasonably complex technical issues explored, so parties’ reasonable expectations played significant role. Defendants’ partial indemnity amount of $48,880 based on 60 per cent of actual costs was reasonable.

Marshall & Swift/Boeckh LLC v. SCM Insurance Services Inc. (2017), 2017 CarswellOnt 8050, 2017 ONSC 3229, R.F. Goldstein J. (Ont. S.C.J.); additional reasons (2017), 2017 CarswellOnt 1332, 2017 ONSC 788, R.F. Goldstein J. (Ont. S.C.J.).

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