Wu v. Ng, 2015 ONSC 320
COURT FILE NO.: CV-14-507549
DATE: 20150115
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MEI QING SUSAN WU, CHIU YUE NG (by his Litigation Guardian MEI QING SUSAN WU), MEI YING WU (by her Litigation Guardian MEI QING SUSAN WU), MEI AI WU (by her Litigation Guardian MEI QING SUSAN WU) and FUNG TIM NG KWAN (by her Litigation Guardian MEI QING SUSAN WU)
Plaintiffs
– and –
MEI TIM NG
Defendant
Gary J. McCallum for the Plaintiffs
Heng (Pandora) Du for the Defendant
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] The Defendant Mei Tim Ng ( “Mei-Tim”) is being sued by her siblings, who respectively live in Toronto, Markham, Vancouver, and Guangzhou City in the People’s Republic of China (“China”). Mei-Tim brought a summary judgment motion dismissing all the claims against her on the grounds of: (1) lack of jurisdiction simpliciter; (2) forum non-conveniens; (3) another pending proceeding in Ontario; (4) abuse of process; and (5) the claims being statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24. Sched. B. The Plaintiffs brought a cross-motion: (1) to amend the style of cause to correct the misnomer that adult plaintiffs were being represented by a litigation guardian; (2) to correct a currency conversion error in the statement of claim; and (3) transferring Toronto Small Claims Court Action (SC-13-00031251-0000) to the Superior Court and consolidating it with this action. I dismissed the summary judgment motion, and I granted the cross-motion. See Wu v. Ng, 2014 ONSC 7126.
[2] I invited the parties to make written submissions if they could not agree about the matter of costs. In my Reasons for Decision, I alerted the parties that I was inclined to order costs in the cause because although the Plaintiffs were successful they caused costs to be wasted by the commencement of a Small Claims Action and by the need to amend the pleadings. There was also doubt about the application of the Succession Law Reform Act and about the ultimate merits of the claim and the defence. In these circumstances, I was inclined to order costs in the cause.
[3] The Plaintiffs submit that I ought not to follow my inclination about costs. They submit that since they were the successful party in resisting a very serious summary judgment motion that would have ended the litigation and because their own cross-motion was successful and any wasting of costs was caused by the position of Mei-Tim, the Plaintiffs ought to receive costs on a partial indemnity basis of $10,000, all inclusive.
[4] Mei-Tim’s position is that no costs should be ordered in the circumstances of this case or alternatively that the costs of the motion should be in the cause.
[5] Having considered the costs submissions of the parties, with one adjustment, I have not been persuaded that my inclination to order costs in the cause was incorrect. The adjustment is to order the costs fixed at $10,000 to the Plaintiffs in the cause.
[6] In other words, if the Plaintiffs are ultimately successful in their various claims against Mei-Tim, then they should receive costs of $10,000, all inclusive, for the two motions. However, if Mei-Tim should be successful on the ultimate merits of the action, then she should not receive costs for these two motions, which were unsuccessful from her perspective. In my opinion, such a costs award would serve the purposes of costs and is fair in the particular circumstances of this case.
[7] Order accordingly.
Perell, J.
Released: January 15, 2015
CITATION: Wu v. Ng, 2015 ONSC 320
COURT FILE NO.: CV-14-507549
DATE: 20150115
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MEI QING SUSAN WU, CHIU YUE NG, by his Litigation Guardian MEI QING SUSAN WU, MEI YING WU, by her Litigation Guardian MEI QING SUSAN WU, MEI AI WU, by her Litigation Guardian MEI QING SUSAN WU, and FUNG TIM NG KWAN, by her Litigation Guardian MEI QING SUSAN WU
Plaintiffs
– and –
MEI TIM NG
Defendant
REASONS FOR DECISION - COSTS
PERELL J.
Released: January 15, 2015