ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-1724
DATE: 20140122

B E T W E E N:

MANAR SRAJELDIN

George F. James, for the Plaintiff, responding party

Plaintiff

• and -

YOGANANDRAM RAMSUMEER and TORONTO TRANSIT COMMISSION

Tamara Broder, for the Defendants

Defendants

HEARD: May 13, 2013
at Brampton, Ontario

Costs Endorsement

Price J.:

NATURE OF MOTION

[1] Manar Srajeldin retained Joseph Zayouna to bring an action on her behalf against the Toronto Transit Commission (“TTC”) and one of its streetcar drivers for damages for personal injury she suffered in a collision with a streetcar in 2009. A year later, when a TTC Claims Adjuster made an offer to settle the action, Mr. Zayouna falsely informed the Adjuster that he had received instructions to settle for the amount offered. Later, when Mr. Zayouna was unable to secure his client’s signature on a release that the TTC had sent to him, he informed the Adjuster that he had been instructed to proceed to litigation.

[2] The TTC moved for judgment in accordance with the settlement the Adjuster believed he had reached with Mr. Zayouna. Ms. Srajeldin opposed the motion, and her new lawyer advised Mr. Zayouna that she would be seeking the costs of the motion against Mr. Zayouna personally. I dismissed the TTC’s motion, but found that Mr. Zayouna had precipitated the motion and should personally pay the costs that the TTC and Ms. Srajeldin had incurred in connection with it.

ISSUE

[3] The court must determine the amount of costs that Mr. Zayouna should pay to the TTC and to Ms. Srajeldin.

POSITIONS OF THE PARTIES

[4] The TTC claims its costs on a substantial indemnity scale in the amount of $7,781.66. Ms. Srajeldin claims her costs in the amount of $12,610.33, also on a substantial indemnity scale, including $500.00 which she paid to the TTC for a January 31, 2013, court appearance before Donohue J. Mr. Zayouna agrees that the amount claimed by the TTC is reasonable and suggests that the same amount be awarded to Ms. Srajeldin.

ANALYSIS

General Principles

[5] As a general principle, costs are in the discretion of the court.[^1] Determining costs is not a mechanical exercise. The overall 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.”[^2] This is a “fundamental concept in fixing or assessing costs.”[^3]

[6] The Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario articulated the principles that govern costs assessments. Armstrong J.A. stated: “When the court awards costs, it shall fix them in accordance with sub-rule 57.01(1) and the Tariffs…Subrule (1) lists a broad range of factors that the court may consider in exercising its discretion to award costs under s. 131 of the Courts of Justice Act.”[^4]

[7] The Court must, first and foremost, be fair and reasonable when exercising its discretion to award costs. As Armstrong J.A. noted in Boucher, the parties’ expectation concerning the amount of a costs award is a relevant factor to be considered. Armstrong J.A. refrained from attempting to articulate a more detailed or formulaic approach, noting that the notions of fairness and reasonableness are embedded in the common law which judges have been applying for centuries to the facts of particular cases.[^5]

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