Court File and Parties

Court File No.: C-710-10
Date: 2013-11-13
Superior Court of Justice – Ontario

Re: Tajdin Abdula, Plaintiff

and

Canadian Solar Inc., Shawn Xiaohua Qu and Arthur Chien, Defendants

Before: The Honourable Mr. Justice P.J. Flynn

Counsel:
A. Dimitri Lascaris and D. Worndl, Counsel for the Plaintiff (Moving Party)

B. Finlay and M. Statham, Counsel for the Defendants (Respondents)

Endorsement

[1] The Defendants were completely successful on the motion by the Plaintiff seeking leave to appeal from the Order of Taylor J.

[2] There wasn’t anything particularly unusual about my ruling. What was unusual was the expressed hope of Taylor J. that leave to appeal his own ruling be sought so that the Divisional Court could provide appropriate guidance on the interpretation of s.138.8(2) of the Ontario Securities Act.

[3] Of course, that guidance will not now be forthcoming.

[4] The Plaintiff argues that it would be appropriate that costs of the motion be in the cause of the leave and certification motion yet to be heard by Taylor J. I disagree.

[5] The rules set out that costs be determined at each stage of a proceeding – so that there is a more immediate consequence of succeeding or failing on a motion.

[6] While the Plaintiff characterizes its approach as novel, the weight of the case law was against it from the beginning. It should have anticipated the result and expected to pay costs.

[7] I must now fix costs which are fair and reasonable and within the reasonable expectation of the Plaintiff.

[8] The Defendants seek costs in the total amount of $18,639.92, for a three hour motion at partial indemnity rates for counsel attending of $250 and $350 per hour.

[9] Given the partial indemnity rates set out in its own Costs Outline, the Plaintiff should have accepted – as I have – Defendants’ counsel rates as reasonable.

[10] While the Plaintiff’s Costs Outline sets out a total potential costs claim of $29,170, it argues that it would have only sought $7,500 had it been successful and says that means therefore that the Defendants’ costs within the Plaintiff’s reasonable expectations, should be in the range of $5,000 - $7,500.

[11] Again, I disagree. The Plaintiff knew that this motion would be argued by counsel much more senior than its own. It should reasonably have expected to pay more costs than it says it would have sought.

[12] I do think, however, that the lowered expectations of the Plaintiff were not reasonable but merely an estimate of how its own bill might have been reduced.

[13] In my view, the fair and reasonable cost of the Defendants, which the Plaintiff ought to have expected, would be in a range which is about double the Plaintiff’s set out expectation or one-half of its costs otherwise delineated. Therefore, I fix the Defendants’ costs in the all inclusive amount of $14,500 and order them to be paid by the Plaintiff within 30 days.

P.J. Flynn J.

Released: November 13, 2013