ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CV-11-54SR
Date: 2013/12/03
B E T W E E N:
1445369 Ontario Inc. and Dr. Raza Khan
Paul Amey, for the Plaintiffs
Plaintiffs
- and -
Hanan Bandkohal also known as Hana Bandkohal
Barry Yellin, for the Defendant
Defendant
A N D B E T W E E N :
Hanan Bandkohal
Plaintiff to the Counterclaim
- and –
Dr. Raza Khan Medicine Professional Corporation and Raza Muhammed Khan and 1445369 Ontario Inc.
Defendants to the Counterclaim
Barry Yellin, for the Plaintiff to the Counterclaim
Paul Amey, for the Defendants to the Counterclaim
The Honourable Justice T. Maddalena
COSTS ENDORSEMENT
[1] On August 26, 2013 I released my judgment granting summary judgment to the plaintiff in the amount of $95,576.53 together with prejudgment interest. I also ordered no stay of execution of the judgment.
[2] I have requested and received costs submissions of the plaintiff by September 16, 2013.
[3] I have requested and received costs submissions of the defendant by October 7, 2013.
Plaintiff’s Position
[4] The plaintiff seeks costs fixed in the amount of $38,000.00 (rounded) inclusive of disbursements and HST, in accordance with Rule 49. Alternatively on a partial indemnity basis the plaintiff seeks costs in the amount of $32,687.00.
[5] The plaintiff further seeks prejudgment interest calculated in the amount of $7,655.68 up to an including September 1, 2013 and thereafter calculated at the rate of 7.786 per diem thereafter.
Defendant’s Position
[6] The defendant claims that the costs of the plaintiff should be fixed at $20,000.00 based on a partial indemnity basis and inclusive of disbursements and HST. In arriving at this amount, the defendant further submits that costs claimed by the plaintiff should be reduced, taking into consideration cross-examinations, affidavits and any work performed in relation to the counterclaims.
[7] Further, the defendant takes no issue with the prejudgment interest calculation, however states that the per diem rate ought not to run past the date of judgment. Thereafter, the defendant submits that the post-judgment rate ought to apply and not the prejudgment interest rate.
Analysis
[8] Rule 49.10(1) states as follows:
49.10 (1) Where an offer to settle,
(a) is made by a plaintiff at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the defendant,
and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise. O. Reg. 284/01, s. 11 (1).
The Plaintiff’s Offer Dated June 23, 2011
[9] This offer of the plaintiff proposed an all inclusive payment of $75,000.00 by the defendant to the plaintiff, but also included the dismissal of all actions including the counterclaims.
[10] This offer was open for acceptance by the defendant until “one minute after the commencement of the motion for summary judgment”.
[11] The defendant responded with an offer dated June 12, 2012 (no details provided) which was rejected by the plaintiff. The plaintiff then resubmitted an offer dated June 19, 2012.
The Plaintiff’s Offer Dated June 19, 2012
[12] In this offer the plaintiff repeated the offer of June 23, 2011, that is, to settle all claims by payment of the amount of $75,000.00 payable by the defendant to the plaintiff and the dismissal of all counterclaims.
[13] This offer was eventually withdrawn by the plaintiff by correspondence dated December 6, 2012.
[14] Accordingly, at the hearing of the summary judgment motion on May 30, 2013 there were no offers available for acceptance by either of the parties. Therefore, I find Rule 49.10 is not applicable.
Conclusions
[15] However, the plaintiff was successful in obtaining summary judgment in accordance with its request as well as no stay of execution of the judgment. Accordingly, there is a presumption that a successful party is entitled to its costs, on a partial indemnity basis throughout.
[16] The defendant submits that the plaintiff’s claim for costs on a partial indemnity basis should be reduced due to work performed by the plaintiff in relation to the counterclaims.
[17] It is acknowledged by the plaintiff that the lengthy affidavits prepared by the plaintiff, as well as cross-examinations and the exchange of affidavit of documents, relate to both the claim and the counterclaims.
[18] Summary judgment motions, by their very nature, are labour and time intensive. Careful scrutiny is important to ensure all evidence is included to meet the required test of “no genuine issue requiring a trial”.
[19] The affidavits, cross-examinations, and affidavits of documents of necessity are required to address all issues including any counterclaims.
[20] Further, in all the circumstances, I find that time spent and hourly rates charged in the plaintiff’s Bill of Costs are reasonable.
[21] I do agree that perhaps a nominal reduction of $1,000.00 is appropriate for some overlap concerning the counterclaims.
[22] Thus, I fix the costs of the plaintiff on a partial indemnity basis at $31,000.00 payable by the defendant to the plaintiff inclusive of disbursements plus HST.
[23] Prejudgment interest is calculated at $7,655.68 up to and including September 1, 2013. Thereafter, the post-judgment interest rate is applicable.
Summary of Orders
[24] Summary of orders made:
The defendant shall pay to the plaintiff costs of the summary judgment motion fixed in the amount of $31,000.00 inclusive of disbursements and HST.
Prejudgment interest is calculated in the amount of $7,655.68 to and including September 1, 2013. Thereafter the applicable post-judgment interest rate shall apply.
Maddalena J.
Released: December 3, 2013
COURT FILE NO.: CV-11-54SR
DATE: 2013/12/03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
1445369 Ontario Inc. and Dr. Raza Khan
Plaintiffs
- and –
Hanan Bandkohal also known as Hana Bandkohal
Defendant
A N D B E T W E E N:
Hanan Bandkohal
Plaintiff to the Counterclaim
- and –
Dr. Raza Khan Medicine Professional Corporation and Raza Muhammed Khan and 1445369 Ontario Inc.
Defendants to the Counterclaim
COSTS ENDORSEMENT
Maddalena J.
Released: December 3, 2013