SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: CV-10-410801
Motion Heard: April 4, 2013

RE: Sahil Kamboj

v.

Jabir Sidhu

Before: MASTER R.A. MUIR

Counsel:
William G. Scott, counsel for the lawyer for the plaintiff
Alan L. Rachlin, for the proposed defendant Gary Ouellette

ENDORSEMENT- COSTS

[1] This costs endorsement arises out of a motion I heard on April 4, 2013. The motion was brought by the plaintiff pursuant to Rule 37.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order setting aside the order of the registrar dated May 17, 2011, dismissing this action as abandoned. The plaintiff also sought an order extending the time for service of the statement of claim and an order substituting the proposed defendant Gary Ouellette (“Ouellette”) in place of the defendant Jabir Sidhu.

[2] On April 26, 2013, I released my reasons for decision dismissing the plaintiff’s motion. As part of those reasons, I requested that the parties attempt to resolve the issue of costs. It appears that the parties have been unable to do so as I have now received the parties’ written costs submissions.

[3] Ouellette seeks his costs in the amount of $9,994.99 on a partial indemnity basis. The plaintiff argues that the costs requested by Ouellette are excessive for a motion of this nature. The plaintiff suggests that partial indemnity costs of $5,000.00 would be fair and reasonable in the circumstances.

[4] The court’s general authority to award costs as between parties to litigation is found in section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides that costs are in the discretion of the court. Rule 57.01(1) sets out a non-exhaustive list of factors the court is to consider when awarding costs. Rule 1.04(1.1) is also applicable. It requires the court in applying the Rules to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding. In general terms, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) at paragraph 26. In Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:

Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[5] These are the principles I have considered and applied in determining the appropriate costs order on this motion.

[6] I have reviewed Ouellette’s costs outline and the submissions of the parties. Ouellette has been successful on this motion and is entitled to an award of costs. In my view, this was a motion of moderate complexity. The facts were somewhat unusual in that the plaintiff had named the wrong defendant which added a level of complexity and an additional issue with respect to misnomer. However, the law with respect to both issues is well established and straightforward. I do accept, however, that it was necessary for Ouellette to conduct cross-examinations and deliver a factum. I also accept that the motion was of significant importance to Ouellette. If he had been unsuccessful on this motion, he would have been faced with the prospect of defending a claim arising from an accident that took place nearly five years ago. However, it is nevertheless my view that the costs requested by Ouellette are somewhat excessive in the circumstances.

[7] Having considered and applied the principles set out above, I have concluded that it is fair and reasonable that the plaintiff pay Ouellette’s costs of this motion on a partial indemnity basis, fixed in the amount of $6,000.00, inclusive of HST and disbursements.

Master R.A. Muir

DATE: June 3, 2013