Court File and Parties

COURT FILE NO.: CV-11-423636
DATE: 20120106
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Royal Bank of Canada (Plaintiff/Moving Party) and Tie Domi Enterprises Ltd.
and Tie Domi aka Tahir Domi (Defendants/Responding Parties)

BEFORE: Justice Beth Allen

COUNSEL:
Natalie Marconi, for the Plaintiff
Alan Davis, for the Defendant, Tie Domi Enterprises Ltd. and Tie Domi aka Tahir Domi

DATE HEARD: by written submissions

costs eNDORSEMENT

[ 1 ] This Costs Endorsement is further to my Endorsement Citation: Royal Bank of Canada v. Tie Domi Enterprises Ltd. 2011 ONSC 7297 dated December 8, 2011. I granted summary judgment in favour of the plaintiff Royal Bank of Canada (“RBC”) ordering judgment against the defendants for monies Tie Domi (“Domi”) personally guaranteed.

[ 2 ] Rule 57.01 of the Rules of Civil Procedure grants the Court discretion to determine which party will be required to pay costs and the extent to which costs are required to be paid. RBC was successful in obtaining judgment for the defendants’ debt. In accordance with the principle that costs should follow the cause, I award costs in RBC’s favour. The question of the quantum is now to be determined.

[ 3 ] In addition to the success of a party, Rule 57.01 provides other factors for the court’s consideration in deciding quantum, being: the complexity of the proceeding; the importance of the issues; the conduct of any party that tended to unnecessarily lengthen or shorten the proceeding; whether any step in the process was improper or vexatious; and the experience of the parties.

[ 4 ] RBC’s counsel seeks costs on the higher scale, inclusive of HST and disbursements, in the total amount of $21,278.17. I am prepared to award RBC those costs for the following reasons.

[ 5 ] RBC submits, and I agree, the defendants should attract the higher scale costs for a number of reasons:

• The guarantees signed by Domi provide at paragraph 12 that the parties agree that all legal costs incurred from instituting an action shall be paid on a solicitor and own client basis. RBC provided case authorities that decided notwithstanding the court’s discretion in determining the quantum of costs they have awarded costs in accordance with contractual terms agreed upon by the parties. [ The Toronto Dominion Bank v. Berthin 1994 CarswellOnt 443, at para. 6, (O.C.J. Gen. Div.) ; and Collins v. Forest Hill Investments Ltd. , 1967 291 (ON SC) , [1967] 2 O.R. 351, at para. 48 , (Ont. Co. Ct.)].

• Domi flagrantly attempted to deceive the court alleging substandard conduct by the RBC account managers in the execution of the guarantees which he alleges induced him to sign them and to unwittingly give his personal guarantee. I found he had manufactured that evidence to cast aspersions on the RBC representatives in an attempt to avoid the indebtedness. He attempted to persuade the court of this version of events in spite of his own documentary evidence and RBC’s evidence to the contrary. Courts have awarded substantial indemnity costs where a party has attempted to mislead or deceive the court. [ Moreira v. Dasilva 1977, CarswellOnt 297, at para. 14, (Ont. H.C.J.) ; Gerula v. Flores 1995 CarswellOnt 1683, paras. 75 and 80, (Ont. C.A.) ].

[ 6 ] An award of substantial indemnity costs is exceptional. Costs on a substantial indemnity scale are awarded in rare circumstances to signal the court’s disapproval of a party’s outrageous conduct during litigation. I find in addition to an award of substantial indemnity costs based on the contractual agreement, Domi’s dishonesty and deceit provides an additional reason to award the costs RBC seeks.

[ 7 ] The Court of Appeal set down the principle that the objective of a determination on costs is to fix an amount the unsuccessful party is required to pay that is fair and reasonable rather than an amount reflecting the actual costs of the successful party. [ Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA) , 71 O.R. (3d) 291 (Ont. C.A.)].

[ 8 ] In the circumstances, I find reasonable an award of costs fixed at $21,278.17, ordered jointly and severally against Tie Domi Enterprises Ltd. and Tie Domi, aka Tahir Domi, payable within 30 days of this Order. The amount is fair and within the reasonable expectations of the parties and in accord with the principles set out by the Court of Appeal in Boucher .

ORDER

[ 9 ] Order accordingly.

Allen J.

Date: January 6, 2012