ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO. 10-CV-402784
DATE: January 21, 2013
BETWEEN:
SWIFT OCEANICS CANADA LTD.
Plaintiff
– and –
JUNG SUNG LEE, HOMELIFE BAYVIEW REALTY INC., JENNIFER LEE, AND VIVIAN LILLIAN PARK
Defendants
- and –
RUSHA MAYEROVICH, a.k.a. ROSE MAYEROVITCH, a.k.a. ROSE MAYER
Third Party
Howard E. Warren for Swift Oceanics Canada Ltd.
David Rubin for Jang Sung Lee
Hans P. Engell for HomeLife Bayview Realty Inc., Jennifer Lee, and Vivian Lillian Park
Howard J. Feldman for Rose Mayerovitch
AND BETWEEN:
JANG SUNG LEE IN TRUST AND 7347481 CANADA INC.
Plaintiffs by Counterclaim
– and –
SWIFT OCEANICS CANADA LTD., CORPORATE IDENTITY MARKETING INC., NEUTRON TELECOMMUNICATIONS INC. and RICHARD BRESLIN
Defendants by Counterclaim
RUSHA MAYEROVICH, a.k.a. ROSE MAYEROVITCH, a.k.a. ROSE MAYER
Third Party
David Rubin for Jang Sung Lee and 7347481 Canada Inc.
Howard E. Warren for Swift Oceanics Canada Ltd., Corporate Identity Marketing Inc., Neutron Telecommunications Inc. and Richard Breslin
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] This is a costs endorsement. By reasons for decision dated December 10, 2012, I dismissed the main action brought by Swift Oceanics Canada Inc. as an abuse of process. The counterclaim will continue, but I dismissed the third party claims. See Swift Oceanics Canada Ltd. v. Lee 2012 ONSC 7030. I ordered that if the parties could not agree about the matter of costs, they might make submissions in writing beginning with the submissions of the moving parties within 20 days of the release of the Reasons for Decision followed by the Plaintiff’s submissions within a further 20 days.
[2] I note at the outset of this endorsement that the costs awards are only against the Plaintiff, Swift Oceanics. At this juncture, there is no basis for awarding costs against the other co-defendants to the counterclaim.
[3] The Defendant to the main action Jang Sung Lee, who is also a Plaintiff by Counterclaim, and his co-Plaintiff by Counterclaim, 7347481 Canada Inc. claims costs for: (1) its successful motion to dismiss the main action on a substantial indemnity basis; (2) the costs of the dismissed action on a substantial indemnity basis; and (3) costs of a motion to consolidate and transfer a Barrie action into a Toronto action on a partial indemnity basis.
[4] Mr. Lee and 7347481 Canada Inc. also ask for an orders under rule 39.04 that: (a) Swift Oceanics pay costs on a substantial indemnity basis for the cross-examinations it conducted; and (b) that Swift Oceanics pay the costs for the cross-examinations that were conducted by Mr. Lee and 7347481 Canada Inc. (rather than pay for them as is the presumptive directive under rule 39.04).
[5] Thus, Mr. Lee and 7347481 Canada Inc. claim: (1) $77,612.33 for the costs of the motion; (2) $8,510.35 for the dismissal of the action; and (3) $10,298.99 for the motion to consolidate, for a total claim of costs of $96,421.67, all inclusive.
[6] The Defendants to the main action Homelife Bayview Realty Inc., Jennifer Lee, and Lillian Park claim costs for: (1) their successful motion to dismiss the main action on a substantial indemnity basis; (2) the costs of the dismissed action and third party claim; and (3) $500, which is the sum I ordered payable to them on the motion to consolidate in any event of the cause.
[7] Thus, these Defendants claim: (1) $20,816.74 for the costs of the motion; (2) $3,638.60 for the dismissal of the action and for the third party claim; and (3) $500, for a total claim of costs of $24,955.34, all inclusive.
[8] The Third Party, Rose Mayerovitch claims costs for her successful motion to dismiss the main action and third party claim on a substantial indemnity basis. She requests a costs award of $46,766, all inclusive.
[9] As noted, all the claimants for costs seek costs on a substantial indemnity basis. The rationale for their requests is that ultimately Swift Oceanics’ action was dismissed as an abuse of process. Indeed, on the motion to dismiss, Mr. Lee, Homelife, Ms. Lee, Ms. Park, and Ms. Mayerovitch all argued that the main action was precluded by various issue estoppels and also as a matter of a contract (the “MOU”) between Mr. Breslin and Ms. Mayerovitch, who is his former common law spouse.
[10] It is true that Swift Oceanics’ claim was an abuse of process based on these various issues estoppels; however, as I noted in my Reasons for Decision, it was an unusual and perhaps unique feature of the various motions, that the issue estoppels were a sort of work in progress as they have continued to develop during the course of these proceedings through motions, and appeals, and most recently the trial judgment in the associated family law proceedings involving Mr. Breslin and Ms. Mayerovitch, which judgment is currently under appeal.
[11] In my opinion, in these odd circumstances of a developing and, as it turned out, progressively stronger issue estoppels, I should exercise my discretion to award costs on the normal partial indemnity basis.
[12] Having made that decision, I also think I should not alter the normal operation of rule 39.02(4)(b), which provides that on a motion other than a motion for summary judgment or a contempt order, a party who cross-examines on an affidavit is liable for the partial indemnity costs of every adverse party on the motion in respect of the cross-examination, regardless of the outcome of the proceeding, unless the court orders otherwise.
[13] The above decisions lead to the next one, which is that all of the respective parties’ claims for costs need to be adjusted to partial indemnity awards and in accordance with the normal discretionary principles that are set out in rule 57.01. The most important of these principles is perhaps found in rule 57.01 (0.b) that the amount of costs should reflect what an unsuccessful party could reasonably expect to pay.
[14] Having read and considered the costs outlines and bills of costs of the parties and also Swift Oceanics’ submissions, I make the appropriate adjustments and award:
• Mr. Lee and 734781 Canada Inc., $45,000, all inclusive;
• Homelife, Ms. Lee and Ms. Park, $20,000, all inclusive; and
• Rose Mayerovitch, $30,000, all inclusive.
[15] Orders accordingly.
Perell, J.
Released: January 21, 2013.
COURT FILE NO. 10-CV-402784
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SWIFT OCEANICS CANADA LTD.
Plaintiff
‑ and ‑
JUNG SUNG LEE, HOMELIFE BAYVIEW REALTY INC., JENNIFER LEE, AND VIVIAN LILLIAN PARK
Defendants
‑ and ‑
RUSHA MAYEROVICH, a.k.a. ROSE MAYEROVITCH, a.k.a. ROSE MAYER
Third Party
REASONS FOR DECISION - COSTS
Perell, J.
Released: January 21, 2013.