ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-488013
DATE: 20150731
BETWEEN:
Nagia K. Mandozai
Plaintiff
– and –
Matthew Joseal Igbinosun
Defendant
K. Sher, for the Plaintiff
C. Sinclair, for the Defendant
s.a.Q. akhtar j.
[1] On 13 April 2015, I granted the plaintiff’s summary judgement motion finding the defendant had breached his duty of care to the plaintiff by acting as her lawyer and for the party to whom she loaned a substantial amount of money. That conflict of interest violated the Rules of Professional Conduct. In addition, the plaintiff failed to inform the plaintiff: that he was acting as lawyer for one of the proposed borrowers in insolvency proceedings. I found his conduct fell far short of the required standard of care he owed to the plaintiff.
[2] The defendant committed a further violation of the Rules of Professional Conduct by borrowing money from the plaintiff and failing to advise her of the fact that, as she was his client, he was forbidden from doing so.
[3] The plaintiff now seeks costs of the motion.
[4] Both parties agree that the fixing of costs is a discretionary decision under s.131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is "fair and reasonable" in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.
[5] The plaintiff requests that costs be paid on a full indemnity basis. She submits that the defendant’s actions constituted a serious breach of trust and placed the administration of justice in disrepute. According to the plaintiff she was “forced” to pursue the defendant through the courts as a result of his denial of the allegations and endure “the arduous process of litigation.” I reject her argument that a full indemnity costs order is warranted in this case. Although the defendant committed serious breaches of trust when arranging the loans that he did, I heard no evidence that he acted in a vexatious manner when litigating the proceedings before the court.
[6] I also reject the plaintiff’s argument that the defendant’s denial of liability entitles her to full indemnity. This argument, if successful, would result in the award of full indemnity costs in the majority of, if not all, civil actions. Full indemnity costs are to be awarded rarely and as a sanction against undesirable conduct on the part of litigants. There was no misconduct on the part of the defendant: he was entitled to mount a defence to the plaintiff’s claims no matter the lack of merit.
[7] I also reject the argument that the plaintiff should recover costs on a substantial indemnity basis. This was a professional negligence case and not one of fraud. The defendant’s actions, whilst falling below the required standard of care, were not “reprehensible, scandalous or outrageous” – the required standard attracting substantial indemnity costs awards: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3 at para. 251.
[8] The case itself was a straightforward affair requiring no examinations for discovery and depending largely on documentary evidence. Although there were cross-examinations on the affidavits tendered in the motion, they took a very short time to complete. I also agree with the defendant’s observation that the plaintiff was only partially successful on the motion as his claim for relief against LawPRO was dismissed.
[9] Accordingly, costs are to be paid by the defendant on a partial indemnity basis. Those costs are fixed in the all-inclusive amount of $19,000.00 which is payable by the defendant forthwith.
S.A.Q. Akhtar J.
Released: July 31, 2015
COURT FILE NO.: CV-13-488013
DATE: 20150731
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Nagia K. Mandozai
Plaintiff
– and –
Matthew Joseal Igbinosun
Defendant
COSTS JUDGMENT
S.A.Q. Akhtar J.