SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-419599
DATE: 20120217

RE: Domus Financial Corporation, Plaintiff

-and-

Sutharvili Thirukumar, Thirunavukarasu Thirukumar, also known as Thirukumar Thirunavaukarasu also known as Thirunavaukarasu Thirukkumar also known as Tom Thiru also known as Sutharvili Thirukumar also known as Thirukumar Trirunavukarasu and 1791298 Ontario Inc., Defendants

BEFORE: Hainey J.

COUNSEL:
John Lo Faso , for the Plaintiff

Melvyn Solmon/Cameron Wetmore , for the Defendants

HEARD: Written Submission

ENDORSEMENT AS TO COSTS

[ 1 ] The moving parties request a costs award in the amount of $62,215.22 calculated on a full indemnity scale. They argue that the significant material non-disclosure by the plaintiff on the ex parte CPL motion warrants the sanction of a costs award on a full indemnity basis. They also argue that the plaintiff’s breaches of the deemed undertaking rule are also deserving of sanction in the form of a full indemnity costs award.

[ 2 ] The plaintiff argues that the defendants should be awarded costs on a partial indemnity scale in the amount of $25,000. This is an amount that the plaintiff maintains is commensurate with the partial indemnity costs incurred by it.

[ 3 ] The plaintiff submits that the breaches of the deemed undertaking rule were not sufficiently serious to warrant a full indemnity costs award. Further, the plaintiff argues that the non-disclosure before Master Hawkins was unintended and any delay in bringing the CPL motion was not a deliberate tactic as suggested by the defendants.

[ 4 ] The Ontario Court of Appeal has made it clear that substantial indemnity costs are reserved for “the rare and exceptional cases where a party’s conduct in the litigation is reprehensible and justifies the unusual sanction of substantial indemnity costs”. ( Hunt v. TD Securities Inc. (2003), 2003 3649 (ON CA) , 66 O.R. (3d) 481 (C.A.) and Drouillard v. Cogeco Cable Inc ., [2007] O.J. No.2531 ). I agree with the plaintiff’s submissions that the breaches of the deemed undertaking rule and the plaintiff’s non-disclosure on the CPL motion did not constitute sufficiently deliberate or reprehensible conduct that would warrant a costs award on a full or substantial indemnity scale. In my view, a fair and reasonable costs award would be in the range of the amount claimed by the moving parties on a partial indemnity basis. In their Bill of Costs the moving parties claim $35,646.09 for costs on a partial indemnity scale. I have carefully reviewed their Bill of Costs and I am satisfied that this is a reasonable amount for costs in light of the issues raised and the complexities of this motion. I find that an amount of costs in this range should have been within the reasonable expectation of the parties.

[ 5 ] The moving parties are awarded costs in the amount of $35,646.00 payable by the plaintiff.

Hainey J.

Date: February 17, 2012