SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: 10 CV 408862
Date: 2013/03/06

RE: NAVRAB INVESTMENTS INC. v. KOSHY CHERIAN VAIDYAN

BEFORE: MOORE J.

COUNSEL:
David N. Vaillancourt, for the Plaintiff
Diane Evans, for the Defendant

E N D O R S E M E N T

[1] The parties have not agreed upon an appropriate assessment of the costs awarded to Navrab and look to me therefore to fix costs for them.

[2] They agree upon the principles to be applied but not on the outcome that should follow from my application of those principles to the particular circumstances of this case. They agree, for example, with the analysis and conclusions articulated by Epstein J.A. in Davies[^1] that while fixing costs is a discretionary exercise, attracting a high level of deference, it must be on a principled basis…apart from the operation of rule 49.10, elevated costs should only be awarded on a clear finding of reprehensible conduct on the part of the party against which the costs award is being made.

[3] Navrab seeks costs on a full indemnity basis, a term not contemplated by rule 49.10, based on its description of Mr. Vaidyan’s conduct in stealing from his former employer, in his failure to admit documents, in putting Navrab to the strict proof of its claim and in requiring its counsel to undertake legal research as bases for the imposition of elevated costs.

[4] It must be remembered however that the overriding principle in fixing costs is reasonableness. Rule 57 sets out measures against which reasonable costs may be judged. They focus attention on the size of the claim, the complexity of the issues, the importance of the issues and the experience of counsel and time and rates charged. No issue is taken over these factors. This was a small case and a short trial conducted by capable counsel charging reasonable rates. The issues were important to the parties and a trial was well warranted.

[5] This said, however the impetus toward enhanced costs is blunted here by reason of the fact that Mr. Vaidyan has had his reprehensible conduct assessed and sanctioned by the court already. He has been found guilty, fined and paid his debt to society. Such was not the situation in the cases submitted by Navrab. In the result, it is neither reasonable nor necessary that Navrab be awarded a windfall of enhanced costs.

[6] As for the application of rule 49, I accept that Navrab offered to settle the case before trial but in exercising my discretion under rule 49.13, I am mindful of the facts found at trial that Mr. Vaidyan is a man of modest means who carries his criminal conviction with him. Navrab asks that he be burdened further with costs of $44,874.55 on top of damages awarded at $70,699.93; that is not reasonable.

[7] On Mr. Vaidyan’s behalf, counsel submits that the judgment alone far exceeds his net worth or his ability to pay. Although ability to pay is not specifically enumerated among the factors identified in rule 57, it most certainly engages the reasonable expectations of a paying party and informs access to justice considerations for Mr. Vaidyan in his decision to take the case to trial. Beyond these considerations, I see no utility served by awarding costs in amounts that cannot be paid.

[8] I find myself in complete agreement with Mr. Vaidyan’s counsel who submits that looking at all of the factors here and considering the complexity of the matter and time spent as well as the factors set out in rule 57.01, an award of $25,000.00 would be reasonable and in keeping with the expectations of the parties.

[9] Costs are therefore fixed and awarded to Navrab in the amount of $25,000.00.

Moore J.

DATE: 6 March 2013

[^1]: Davies v. Clarington (Municipality), 2009 ONCA 722 at para 40.