Superior Court of Justice - Ontario

COURT FILE NO.: 07-33113
DATE: 2012-01-20

RE: Lieu Thi Thu Nguyen, Plaintiff

AND:
Thach Nhan, Defendant

BEFORE: The Honourable Madam Justice J. A. Milanetti

COUNSEL:
Tilda Roll, Counsel for the Plaintiff

Devon Ryerse, Counsel for the Defendant

COSTS ENDORSEMENT

[ 1 ] Both the plaintiff and the defendant seek their costs of this action. The defendant, the primarily successful party, seeks its costs of $20,000 on a substantial indemnity basis. The plaintiff seeks its costs of $17,000, (on a partial indemnity basis) despite its own acknowledgement that the defendant was the successful party.

[ 2 ] In my judgment I awarded the plaintiff $3,000 (noting that the defendant had acknowledged owing the plaintiff $1,000) of the $60,000 the plaintiff claimed was loaned without repayment.

[ 3 ] The defendant seeks substantial indemnity costs based on the Supreme Court of Canada decision of Hamilton v. Open Window Baker, [2004] 1 S.C.R. 303, 2004 SCC 9 which says such is the proper remedy when claims of dishonesty and fraud are unproven.

[ 4 ] This entire claim smacks of an underground economy. The plaintiff alleges that she loaned substantial sums of cash at significant premium.

[ 5 ] All of the conduct was somewhat unseemly.

[ 6 ] I will not award the victorious party substantial indemnity costs. I would, however, award costs on a partial indemnity scale.

[ 7 ] The plaintiffs take issue with my finding that Dean Paquette’s testimony provided Mr. Nguyen’s evidence with an air of reality. It will be recalled that Mr. Paquette was called to court to explain a date on a letter from him that did not accord with the story advanced by Mr. Nguyen. An undertaking had been given to provide documentation bearing out Mr. Nguyen’s receipt of cash from criminal lawyer Dean Paquette.

[ 8 ] At trial Mr. Paquette indicated that for some unknown reason his computer automatically changes archived letters to reflect the date the letter was recalled rather than the original date. This was unknown until Mr. Paquette took the stand. Plaintiff’s counsel hoped to catch Mr. Nguyen in a lie by reference to the date on the letter produced. This ultimately backfired on them.

[ 9 ] I cannot and will not lay responsibility for this turn of events at the feet of defence counsel. They undertook to obtain documentation from Mr. Paquette and did so. If plaintiff’s counsel was concerned about the date, she should have raised that in advance of trial seeking clarification. She chose not to do so.

[ 10 ] I do not fault the defendants for not figuring this out in advance – had they been asked about it, they could have approached Mr. Paquette for clarification. They were not. They were not asked to provide the date of payment; merely some acknowledgement from Mr. Paquette that the payment had been made. They did what was required of them pursuant to the undertaking.

[ 11 ] I have considerable difficulty awarding the sums sought by either party in the face of my decision that $3,000 was outstanding to the plaintiff. This was a shady loan, borne out by less than ideal paperwork, and witnessed by less than stellar witnesses.

[ 12 ] The plaintiff, by advancing a $60,000 debt face of what I found to be payments, put the litigation into motion. This litigation required examinations for discovery, multiple translation services, and a trial that extended into a third day at the Superior Court level. I was told of no offers to settle.

[ 13 ] Costs shall be payable to the defendant in the aggregate sum of $10,000 (reflective of fees, disbursements and taxes). That figure reflects partial indemnity for Ms. Ryerse (reduced to 20 hours time from 30 hours) and Mr. Argiropoulos only. It also reflects the limited value of the claim; and the non-complexity of the issues.

[ 14 ] Moreover, the disbursements should be reduced by charges for file computerization/storage/Law Society fees and parking.

[ 15 ] The interpreters fees should be shared as per the agreement arrived at prior to trial.

[ 16 ] As such, at the end of the day, the defendant shall be entitled to their costs in the aggregate sum of $10,000. That sum reflects $8,000 of fees and $2,000 of disbursements.

MILANETTI J.

Date: January 20, 2012