



COURT OF APPEAL FOR ONTARIO

CITATION: Raibex Canada Ltd. v. ASWR Franchising Corp., 2018
    ONCA 221

DATE: 20180306

DOCKET: C62744

Sharpe, Blair
[1]
and Epstein JJ.A.

BETWEEN

Raibex Canada Ltd., Ashraf Habashy, Ihab Lawandi
    and Ramy Bastaros

Plaintiffs/Defendants by counterclaim (Respondents/Appellants
    by way of cross-appeal)

and

ASWR Franchising Corp.
*,
ASWR
    Developments Inc.
*, Hellenic International Holdings Inc., Leontian Holdings
    Inc.,
Athanasios Anastopoulos aka Tom Anastopoulos
and J. Perry
    Maisonneuve

Defendants (
Appellants
/Respondents
    by way of cross-appeal)

*Plaintiffs
    by counterclaim

Geoffrey B. Shaw and Christopher Horkins, for the
    appellants

David S. Altshuller and Lara Di Genova, for the
    respondents

Heard: October 4, 2017

On appeal from the judgment of Justice Wendy M. Matheson
    of the Superior Court of Justice, dated September 7, 2016, with reasons
    reported at 2016 ONSC 5575.

COSTS ENDORSEMENT

[1]

The central issue on this appeal
    was whether the franchise disclosure document the appellant franchisor
    (respondent by cross-appeal) provided was so inadequate that it entitled the
    respondent franchisee (appellant by cross-appeal) to rescind the parties
    franchise agreement under s. 6(2) of the
Arthur Wishart Act (Franchise Disclosure), 2000
,

S.O. 2000, c. 3.

[2]

The franchisee sought a
    declaration validating the rescission of the franchise agreement and related
    agreements. It also claimed several million dollars in consequential damages.
    The franchisor sought repayment of costs incurred after taking over the
    franchise following receipt of the franchisees notice of rescission.

[3]

Both sides brought a motion for
    summary judgment. The motion judge held that the franchise agreement had been validly
    rescinded but dismissed the franchisees damage claim. The motion judge
    dismissed the franchisors claim for damages. The motion judge determined that
    no costs should be awarded.

[4]

The franchisor appealed the motion
    judges decision declaring that the franchise agreement had been rescinded and
    the dismissal of its cross-motion for damages. The franchisee cross-appealed
    certain ancillary issues addressed in the motion judges reasons.

[5]

In a decision released January 25,
    2018, we found in favour of the franchisor on all issues.

[6]

At the end of the hearing the
    parties agreed that the franchisee should pay the costs of the appeal and
    cross-appeal in the amount of $40,000, inclusive of disbursements and taxes.
    The parties were not able to agree on the costs of the underlying motions for
    summary judgment and we have now received their written submissions.

[7]

The franchisee submits that this
    court ought not to interfere with the motion judges decision on costs. Alternatively,
    the franchisee argues that the appropriate measure of partial indemnity costs
    incurred by the franchisor is $19,692.00.

[8]

The franchisors position is that
    in the light of the result, the franchisee should be ordered to pay the costs
    of the motions in the amount of $114,676.40.

[9]

Having considered the parties
    submissions, and the factors enumerated in r. 57, of the
Rules of Civil Procedure
, we are of the view that a reasonable award to the
    franchisor for the costs of the motion and cross-motion is $60,000, inclusive
    of disbursements and taxes in addition to costs of the appeal fixed at $40,000,
    inclusive of disbursements and taxes and we so order.

Robert J. Sharpe J.A.

Gloria Epstein J.A.





[1]

Blair J.A. took no part in this costs endorsement.


