SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-11-4980-00
DATE: 20121217
RE: Parmar v. Primmum Insurance et al.
BEFORE: MacKenzie J.
COUNSEL:
Ms. N. Ritika, for plaintiff
Mr. B. Yung, for Manjit Saini, a proposed defendant
HEARD: November 2, 2012
E N D O R S E M E N T re: Costs
[ 1 ] By Endorsement dated November 2, 2012, I dismissed the plaintiff’s motion to amend the Statement of Claim, (a) by substituting the name of Manjit Saini as a defendant in place of John/Jane Doe; and, (b) by substituting the names of Marshell Susanto and Inge Susanto as defendants in place of John/Jane Doe. I ruled that the plaintiff failed to discharge her onus in the motion for the written reasons set out in the Endorsement dated November 2, 2012. I directed the parties to submit written materials on costs issues according to the schedule set out in the Endorsement dated November 2, 2012 if they were unable to agree on costs issues.
[ 2 ] I have been informed the plaintiff and the proposed defendants, Marshell and Inge Susanto have settled costs issues. However, no agreement was reached between the plaintiff and the proposed defendant Manjit Saini. I have now received their written materials on costs issues and will rule on those issues.
[ 3 ] Counsel for the proposed defendant, Manjit Saini, seeks costs against the plaintiff on the partial indemnity basis in the amount of $3,562.16, all inclusive. Counsel contends that Manjit Saini was wholly successful in opposition to the relief sought by the plaintiff. In support, counsel submits it was reasonable and necessary for counsel to exercise due diligence in his preparation, including appropriate research into and drafting of responding materials, to address the issues raised by the plaintiff’s motion. Counsel states the fact that the plaintiff did not contest nor argue the misnomer issue in her submissions on the hearing of the motion does not nullify the value of the time expended by counsel in preparation for addressing that issue if in fact the misnomer issue had been argued on the hearing of the motion.
[ 4 ] In response, counsel for the plaintiff takes issue with various components of the submissions and Costs Outline of the proposed defendant, Manjit Saini.
[ 5 ] The plaintiff rejects any costs award comprising:
(a) an amount relating to the preparation, serving and filing of a factum,
on the ground that a factum on a regular (rather than long) motion of the type in question is not mandated by the Rules;
(b) an amount relating to travelling costs calculated at the full rate of
counsel and for the number of hours expended in travel;
(c) an amount or amounts relating to 12 hours as a lump-sum time for
the entire engagement in the subject motion; and
(d) an amount relating to the failure of counsel to delegate certain tasks
such as research into the applicable law and the preparation of the Costs Outline to counsel’s staff who could have discharged such tasks at a lower rate than counsel;
[ 6 ] The plaintiff notes R. 57.01 (1) which provides for the court to consider, among other factors “...whether it is appropriate to award any costs or more than one set of costs where a party...(ii) in defending a proceeding separated unnecessarily from another party in the same interest...”
[ 7 ] The plaintiff relying on the above extract submits “that the interests of all proposed defendants in this motion were identical. Their apparent failure to cooperate in any meaningful way increased the complexity of the motion.”
[ 8 ] Counsel cites no case law in which the above principle has been applied. In any event, I reject the proposition that the ‘interests’ of all three proposed defendants were ‘identical’ is dispositive of the quantification, let alone entitlement of Manjit Saini to costs of the motion. I am also of the view that the ‘interests’ of the three proposed defendants were not the ‘same’ within the meaning of that word used in R. 57.01 (1) (h) (ii), above. The nature of the plaintiff’s claims against the proposed defendant, Manjit Saini, on the one hand and the proposed defendants, Marshell and Inge, were sufficiently different as to lack the requisite ‘sameness’ that is the basis of the plaintiff’s argument in this regard. In my view, Manjit Saini was entitled to representation on the motion separate and independent of the representation for the proposed defendants Marshell and Inge Susanto.
[ 9 ] The plaintiff further contends that as she settled costs with the proposed defendants, Marshell and Inge Susanto, in the amount of $1,500.00, this court should treat $1,500.00 as a cap or maximum for any costs award to the proposed defendant, Manjit Saini.
[ 10 ] I disagree. It would be equally open to the proposed defendant, Manjit Saini to argue that the $1,500.00 costs that was settled by the plaintiff may have been arrived at from considerations extraneous to fixing costs herein. The $1,500.00 award is the result of accommodation or agreement between the parties to that award: it does not govern the exercise of this court’s discretion in fixing the costs in question. As has been stated in the plaintiff’s costs submissions, “...the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding...” Boucher v. Public Accountants Council for the Province of Ontario , 2004 14579 (OCA), at para 26 ; see also R. 57.01 (1) (o.b.)
[ 11 ] In the result, I fix the costs of the proposed defendant, Manjit Saini, at $2,500.00 all-inclusive, payable forthwith by the plaintiff.
MacKenzie J.
DATE: December 17, 2012
COURT FILE NO.: CV-11-4980-00
DATE: 20121217
SUPERIOR COURT OF JUSTICE - ONTARIO RE: Parmar v. Primmum Insurance et al. BEFORE: MacKenzie J. COUNSEL: Ms. N. Ritika, for plaintiff Mr. B. Yung, for Manjit Saini, a proposed defendant ENDORSEMENT re: Costs MacKenzie J.
DATE: December 17, 2012