SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-420294
DATE: 20130917

RE: ZHENG ZHANG
Plaintiff

• and -

HUA HAI LI STEEL PIPE CO. LTD., RENJIE ZHANG, RUQIU ZHANG, JIAMING ZHANG and YUMIN YANG
Defendants

BEFORE: Justice S. M. Stevenson

COUNSEL: Christopher P. Goldson, for the Plaintiff

Edward F. P. Hung, for the defendants Renjie Zhang, Ruqiu Zhang, Jiaming Zhang and Yumin Yang

DATE HEARD: June 11, 2013

ENDORSEMENT AS TO COSTS

[1] In my endorsement dated July 22, 2013, I urged the parties to try to agree on costs, but asked that if they were unable to do so they provide me with their written submissions. I have now reviewed the written submissions of both parties.

[2] The plaintiff is seeking costs on a substantial indemnity basis in the amount of $23,365.28, inclusive of HST and disbursements with respect to the dismissal of the summary judgment motion brought by the defendants. The plaintiff submits that she has been successful on the motion, that the defendants have still failed to comply with court orders by refusing to provide disclosure and that they have delayed matters in an effort to financially drain her. She further contends that the defendants' motion for summary judgment was without merit and that the defendants' motion to determine the issue of jurisdiction was also without merit as found by the Court of Appeal. She submits that the defendants are abusing the court system.

[3] The defendants submit that the costs payable by them should be $4,500 and that costs should be determined on a partial indemnity scale. They further contend that the summary judgment motion was heard on June 11, 2013 only and costs for the previous motion brought by the defendants have already been determined.

[4] The defendants also submit that the summary judgment motion was brought with merit and that valid arguments were raised by the defendants. They contend that the plaintiff's costs are exorbitant and that there is duplication, or even triplication, in time by three lawyers and their staff. They further submit that $4,500 is an amount that the defendants could have reasonably expected to pay if unsuccessful on the motion, given the motion was less complex than the jurisdiction motion previously brought by them.

[5] I have reviewed the Costs Outline as provided by the plaintiff. It appears that costs are being claimed for the two motions, the first returnable July 11, 2012 and the other on June 11, 2013. On July 11, 2012, only the issue of jurisdiction was argued. At the time of rendering my decision with respect to the first motion, I ordered that the summary judgment motion be scheduled for a long motions date.

[6] The issue of costs pertaining to the first motion has already been determined as set out in my endorsement dated September 20, 2012 although I acknowledge that there would have been some preparation necessary by plaintiff's counsel with respect to the summary judgment motion, as he was unsure as to whether both motions were going ahead on July 11, 2012.

[7] The plaintiff was successful on this motion as there was a dismissal of the defendants' claim for summary judgment. However, even though the plaintiff was successful on the motion, I am not prepared to grant costs on a substantial indemnity basis.

[8] As stated in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) at para. 26: "the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant". As also stated in Boucher, the fixing of costs is not a mechanical exercise and does not begin and end with the calculation of hours times rates.

[9] I find that the total time spent on this motion by three counsel and a senior law clerk is excessive and there is duplication. There is also time billed for the first motion and those costs have already been determined. As such, there must be a reduction in costs given those factors.

[10] In assessing costs, I have considered what the defendants, as the unsuccessful parties, would have reasonably expected to pay if they were unsuccessful on the motion. I have also taken into consideration the factors set out in Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 that the court may consider when exercising its discretion in awarding costs, including the defendants’ conduct in not producing relevant disclosure. I have also considered the costs submissions of the parties and the plaintiff's Costs Outline.

[11] Although I have determined that the costs sought by the plaintiff should be reduced for the reasons set out above, I order the defendants to pay to the plaintiff the sum of $9,000, inclusive of HST and disbursements. I find that this is an amount that is fair and reasonable for the defendants to pay and an amount that they could have reasonably expected to pay if unsuccessful on this very important motion. I do not agree with the submissions of counsel for the defendants that the issues on this motion were less complex. This was a motion for summary judgment that was extremely important to both parties and involved much preparation. This is evidenced by the plaintiff's Costs Outline and the necessary steps taken by the plaintiff to respond to the motion.

Stevenson J.

DATE: September 17, 2013