SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-398950
DATE: 20120327

RE: Payman Hodaie (plaintiff) and RBC Dominion Securities, Timothy Henry and Robert Skeat (defendants)

BEFORE: Dambrot J.

COUNSEL:
Michael Meredith , for the Plaintiff
Marc Kestenberg , for the Defendants

COSTS E N D O R S E M E N T

[ 1 ] On October 26, 2011, I heard a motion for summary judgment brought by the defendants. The defendants advanced two arguments in support of their motion. I accepted the first of these. I rejected the second one. Nonetheless, the defendants were entirely successful on the motion. I granted their motion, dismissed the plaintiff’s action, and gave the parties an opportunity to address the issue of costs in writing. I have now had the opportunity to review their submissions.

[ 2 ] The defendants seek substantial indemnity costs in the amount of $58,682. They argue that they were put to considerable trouble and expense to resist an action for in excess of $450,000, and enforce a $35,000 settlement. They further argue that this level of costs was well within the reasonable contemplation of the plaintiff. In a letter from the plaintiff’s counsel dated July 6, 2011, the defendants were advised that the plaintiff’s costs to date were approximately $50,000, and that he expected his client’s costs, by the time of the motion, would exceed $80,000. He advised that he intended to bring his letter to the attention of the Court if his client was successful, and seek substantial indemnity costs. The defendants also point to conduct of the plaintiff in making calendar entries that I found to be highly suspicious in support of an effort to resile from his decision to settle. Finally, the defendants note that the plaintiff was a person of means.

[ 3 ] The plaintiff resisted the notion that the defendants were entirely successful on this motion given that one of the defendants’ two arguments failed. He argued that success was mixed, and that the defendants should recover their partial indemnity costs in relation to the issue they succeeded on, but that he should be awarded substantial indemnity costs on the issue that failed. He also advanced an argument that the defendants occasioned unnecessary costs. It is instructive to note that the plaintiff calculated his substantial indemnity costs for the second argument alone as $48,602.43.

[ 4 ] In my view, the plaintiff’s argument that he is entitled to costs in respect of an issue raised by the defendants that failed is wholly without merit. There was no divided success in this case. The defendants were successful in securing the dismissal of the plaintiff’s claim in its entirety. As Campbell J. noted in the very case relied upon by the plaintiff ( Chippewas of Sarnia Band v. Canada , [2000] O.J. No. 1875 at para. 41 ), it is unfair to reduce a successful party’s costs by reason of the mixed success of their arguments. “They should not be penalized for mounting a full and vigorous defence on every point reasonably open to them.” I found the defendants’ second argument to be without merit. I did not conclude that it was not reasonably open to them to make it. In addition, I do not find that the defendants were responsible for any unnecessary costs. The defendants are entitled to their costs for the entire motion; the plaintiff is not entitled to costs at all.

[ 5 ] As for the scale of costs, while I was highly suspicious of the plaintiff’s calendar entries, neither they nor any other consideration satisfies me to award costs on the higher scale. The defendants calculate their partial indemnity costs as $39,910.36. These costs are fully supported, and obviously lower than what the plaintiff would calculate his partial indemnity costs to be for the whole motion.

[ 6 ] In the result, I award costs to the defendants in the amount of $39,910.36 all in, payable within 30 days.

M. Dambrot J.

DATE: March 27, 2012