SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-420294
DATE: 20120920

RE: ZHENG ZHANG
Plaintiff

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HUA HAI LI STEEL PIPE CO. LTD., RENJIE ZHANG, RUQIU ZHANG, JIAMING ZHANG and YUMIN YANG
Defendants

BEFORE: Justice S. M. Stevenson

COUNSEL:
Goldson, C. P. , for the Plaintiff

Edward F. P. Hung , for the defendants Renjie Zhang, Ruqiu Zhang, Jiaming Zhang and Yumin Yang

DATE HEARD: July 11, 2012

E N D O R S E M E N T

[ 1 ] The Plaintiff, Zheng Zhang, is seeking costs on a substantial indemnity basis in the amount of $17,178.02, inclusive of HST and disbursements with respect to the motion brought by the Defendants regarding the issue of jurisdiction. The Plaintiff submits that she was wholly successful on the motion and that costs on a substantial indemnity basis are appropriate given the conduct of the Defendants in refusing to follow two previous court orders regarding disclosure and refusal to answer proper questions regarding assets.

[ 2 ] The Plaintiff also submits that the motion required extensive preparation, the motion was complicated and the Defendants only allowed for a short timeline to respond to the motion. She also submits that the Defendants failed to cooperate at cross-examinations and as a result, the cross-examinations required more time.

[ 3 ] The Defendants submit that costs should be with respect to the issue of jurisdiction only and that costs should be capped at $3,166.60. They submit that the issue of jurisdiction was brought with merit for an important issue and valid arguments were advanced by the Defendants. The Defendants also contend that the Plaintiff’s costs are exorbitant for the jurisdiction issue and that there is duplication and/or triplication of the work completed.

[ 4 ] As stated in Boucher v. Public Accountants Council for the Province of Ontario , 2004 14579 (ON CA) , [2004] O.J. No. 2634 (C.A.) at para. 26 , with respect to costs: “…the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”. As also stated in Boucher , the fixing of costs is not a mechanical exercise and does not begin and end with the calculation of hours times rates.

[ 5 ] I agree that the Plaintiff was successful on this motion. However, I am not prepared to grant costs on a substantial indemnity basis. The sole issue that was to be determined was the jurisdiction issue. The conduct of the parties was not an issue to be determined on this motion and there are no grounds for awarding costs on a substantial indemnity basis. Even though much work had to be done by the Plaintiff’s counsel, I also agree that the costs of the Plaintiff for this motion are somewhat excessive and it appears that there is some duplication of work completed by counsel.

[4] In assessing costs, I have considered what the Defendants would have reasonably expected to pay if they were unsuccessful on the motion. I have also taken into consideration the factors set out in Rule 57 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 which the Court may consider when exercising its discretion in awarding costs and the costs submissions of both parties, including the Costs Outline of the Plaintiff.

[5] Taking all of this into consideration, I order that the Defendants pay to the Plaintiff the sum of $6,000.00, inclusive of HST and disbursements as I find that this is an amount that is fair and reasonable for the Defendants to pay and an amount that the Defendants could have reasonably expected to pay if unsuccessful.

Stevenson J.

DATE: September 20, 2012