SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-406104
DATE: 20150714

RE: Sivapragasam Baskaran and Karunawathy Baskaran, Plaintiffs

AND:

Sanjaykumar Madanlal Doshi and Home Trust Company, Defendants

BEFORE: Justice W. Matheson

COUNSEL:
James Morton, for the Plaintiffs

Sean Dewart and Chris Donovan, for the Defendant Sanjaykumar Madanlal Doshi

HEARD: In writing.

COSTS ENDORSEMENT

[1] This action was dismissed by judgment released on June 9, 2015, with a schedule for written costs submissions. Those submissions have now been delivered.

[2] The plaintiffs’ claim was in negligence. They unsuccessfully alleged that the defendant lawyer failed to take reasonable steps to ensure that he was in fact dealing with the plaintiffs before purporting to act for them and discharging their mortgages. The defendant lawyer defeated the claim and now seeks his partial indemnity costs.

[3] The general principles applicable to the order of party and party costs are well settled. Costs are discretionary. Rule 57.01 of the Rules of Civil Procedure sets out factors I may consider in exercising my discretion, in addition to the result of the proceeding and any written offers to settle. Overall, the objective is to fix an amount that is fair and reasonable, having regard for, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634, 71 O.R. (3d) 291 (C.A.) at paras. 26, 38.

[4] In this case, there is no dispute that the defendant, as the successful party, should have a costs order in his favour. The parties also agree that costs should be on a partial indemnity basis.

[5] The defendant seeks about $74,000, all inclusive. The plaintiffs have done a detailed review of the materials in support of this amount and have identified specific items of concern. While they do not challenge that all the time was actually spent, areas have been identified where they submit that the time spent was excessive in all the circumstances. The hourly rates are also challenged, though not as significantly as the total hours. Some specific items are also challenged. The plaintiffs further challenge the time spent and disbursement for an expert report that was not used at trial. Overall, the plaintiffs submit that a total award of $25,000 would be more appropriate.

[6] I have considered all relevant factors in the exercise of my discretion regarding costs. Without going through every factor in detail, I note the following:

(1) While this was a relatively short trial, the amount claimed was substantial and the issues were of high importance to the defendant given the potential adverse impact on his professional reputation.

(2) There were no issues regarding the conduct of the trial. Both sides contributed to a well-organized and efficiently-run trial.

(3) While I do not criticize the defendant for the time spent, the time spent on some items is more than I conclude is reasonable on this party and party costs claim. Certainly, the plaintiffs should not bear the additional preparation costs of the defendant’s senior counsel changing just before the trial, and there were some parts of the proceeding for which the plaintiffs ought not to be called upon to pay for more than one counsel to be present. Other items had hours that were somewhat high, or were tasks that ought to have been done by more junior counsel.

(4) Overall, I find that claimed rates reasonable.

(5) It was prudent to obtain an expert report as a defendant, given the nature of the allegations, even though as the proceeding unfolded it turned out to be unnecessary to call the expert at trial. I find that amount to be reasonable trial preparation.

(6) I agree that the disbursement for the two notices of motion ought not be included.

[7] Bearing everything in mind, I exercise my discretion to order that the plaintiffs pay the defendant $56,875 for costs, inclusive of disbursements and applicable tax.

[8] The defendant also asks that this order be made using the correct legal articulation of the first plaintiff’s name. At trial, on discussion, the plaintiffs were called Mr. and Mrs. Baskaran, which is also consistent with the title of proceedings. However, for purposes of this order, costs shall be paid by: Baskaran Sivapragasm and/or Karunawathy Baskaran.

Justice W. Matheson

Released: July 14, 2015