There was no evidence to establish that director engaged in absue of process in commencing action

Ontario civil | Civil Practice and Procedure | Costs | Persons entitled to or liable for costs

Motion judge found that plaintiffs’ action was abuse of process and that plaintiff had provided fraudulent undertaking to court on its application for interlocutory injunction. Motion judge awarded costs against non-party who was sole shareholder, president and director of plaintiff. Director of plaintiff appealed. Appeal allowed. Order of motion judge was set aside as well as order with respect to costs of motion and costs of appeal were fixed at $5,000. There was no evidence before motion judge to establish that director engaged in abuse of process in commencing action. There was no basis to award costs against director simply because he was president and sole shareholder of plaintiff. Evidence in relation to undertaking did not rise to very high level of establishing that undertaking itself was fraudulent. It was never demonstrated that plaintiffs could not honour undertaking if called upon to do so.

Quest Management Services Inc. v. Quest Management Systems (2017), 2017 CarswellOnt 19996, 2017 ONCA 999, G.R. Strathy C.J.O., R.G. Juriansz J.A., and Grant Huscroft J.A. (Ont. C.A.); reversed (2017), 2017 CarswellOnt 5967, 2017 ONSC 2537, Barnes J. (Ont. S.C.J.).

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