ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-400553
DATE: 20120913

BETWEEN:

Kevin Sousa Plaintiff – and – Harshavardhan Jahagirdhar and Telly Lengkey and Robby Kuhon and Unifund Assurance Company Defendants

D. Himelfarb and B. Lui , for the Plantiff

A. Feldbloom and E. Kim, for the Defendants, Telly Lengkey and Robby Kuhon J. Shaw, for the Defendant, Unifund Assurance Company Harshavardhan Jahagirdhar, Self- Represented Defendant

J.S. O’Neill

RULING ON COSTS

[ 1 ] Following my decision on June 27, 2012 I have since received and reviewed cost submissions from the Plaintiff, and from the Defendants Telly Lengkey and Robby Kuhon.

[ 2 ] S. 131 of the Courts of Justice Act provides that “subject to the Rules of Court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by who and to what extent the costs shall be paid.”

[ 3 ] Rule 57 of the Rules of Civil Procedure states that in exercising its discretion under s. 131 of the Courts of Justice Act, the court may consider, in addition to the result of the proceeding and offers to settle, a variety of factors including “the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding” and “whether any step in the process was (i) improper, vexatious or unnecessary, or taken through negligence, mistake or excessive caution.”

[ 4 ] In my reasons, I indicated that the moving party, Unifund Assurance Company, was entitled to its cost of the motion on a partial indemnity scale. I also ordered that the plaintiff’s action against the said defendant was dismissed with costs.

[ 5 ] At paragraph 3 of its Overview, the Defendants Lengkey and Kuhon indicate that they have come to an agreement with Unifund and with the Plaintiff that costs payable to Unifund in the amount of $5000.00 for the Summary Judgment Motion and $8000.00 for the action, inclusive of all disbursements and taxes are appropriate. Accordingly, the quantum of costs is no longer an issue as between the parties.

[ 6 ] It was the Plaintiff who amended his claim on November 23, 2010 to include a specific claim against Unifund. I accept the Plaintiff’s submission that it was reasonable to add Unifund to the action at that time.

[ 7 ] I also accept that following the Plaintiff’s examination for discovery, the Plaintiff wrote to the Defendants, both on September 8, 2011 and on December 8, 2011 indicating that he would let the Defendant Unifund out of the Action if the Defendants Lengkey and Kuhon agreed that the Defendant Lengkey was at least 1% liable in all of the circumstances. As these Defendants did not admit that Lengkey was at least 1% liable the Plaintiff has submitted that he had no choice but to keep Unifund in the Action so as to insure coverage was available to him.

[ 8 ] The Defendants’ Lengkey and Kuhon opposed the motion for summary judgment. The Plaintiff did not take a position on the motion and did not argue the motion.

[ 9 ] The Defendants submit that it is the responsibility of the Plaintiff to pay Unifund’s costs of the Action up to and including the day of the summary judgment motion. They further submit that the costs of the summary judgment motion be payable on a 50-50 basis as between the said two Defendants and the Plaintiff.

[ 10 ] The Plaintiff has submitted that this is an appropriate case for a Sanderson Order. In my view, the statement outlined in paragraph 30 of the Plaintiff’s costs submission is applicable in this case. In his endorsement in the Heipel decision (Heipel v. Craigie 1999, Carswell Ont 514 ) Justice Templeton stated:

“As I have indicated, in the circumstances of this case, it was reasonable in my opinion, to add Mr. Hopf as a party to the action. In my opinion, it was also reasonable to maintain Mr. Hopf as a party to the action until the issue of liability for the damages claimed was settled on consent or by way of judgment.”

[ 11 ] On the other hand, after adding Unifund as a Defendant it has now been determined that the action against Unifund ought to be dismissed in that the Defendant Lengkey is at least 1% liable in negligence.

[ 12 ] In short, the Plaintiff brought Unifund into the action and would not release this Defendant until the other Defendants agreed that the Defendant Lengkey was at least 1% liable in negligence. And on the summary judgment motion, the Defendants Lengkey and Kuhon argued that all liability rested with the Defendant Jahagirdhar. The two Defendants were not successful in this regard. Unifund could have been left out of the action earlier if the two said Defendants agreed with the Plaintiff’s position set out in his letters of September and December of 2011. Those letters were written after the Plaintiffs examination for discovery, but certainly in advance of the summary judgment motion.

[ 13 ] Weighing all of these factors, and exercising my discretion pursuant to s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, I hereby order as follows:

Part A: The Costs of the Action

i) The Plaintiff is to pay to the Defendant Unifund $4800.00 representing 60% of the costs of the action, inclusive of all disbursements and taxes.

ii) The Defendants’ Lengkey and Kuhon are to pay to the Defendant Unifund 40% of the costs of the action, namely $3200.00 inclusive of all disbursements and taxes.

Part B: The Costs of the Summary Judgment Motion

The costs of the Summary Judgment motion agreed in the amount of $5000.00 shall be paid 50% by the Plaintiff Kevin Sousa, and 50% by the Defendants’ Lengkey and Kuhon.

[ 14 ] Order Accordingly.

Justice J.S. O’Neill

Released: September 13, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Kevin Sousa Plaintiff – and – Harshavardhan Jahagirdhar and Telly Lengkey and Robby Kuhon and Unifund Assurance Company Defendants REASONS on COSTS Justice J.S. O’Neill

Released: September 13, 2012