Sundarampillai v. Ponnambalam, 2015 ONSC 6072

CITATION: Sundarampillai v. Ponnambalam, 2015 ONSC 6072

COURT FILE NOs.: CV-14-517879; CV-15-521103

DATE: 20151006

ONTARIO

SUPERIOR COURT OF JUSTICE

PROCEEDING COMMENCED UNDER the Partition Act, RSO 1990, c P.4 and the Rules of Civil Procedure, RRO 1990, Reg 194, ss 14.05(3)(f), 14.05(3)(h) and 66.

BETWEEN:

Court File No. CV-14-517879

CHITRA SUNDARAMPILLAI

Applicant

– and –

SELVARAJAH PONNAMBALAM and

THAIYALNAYAKI SELVARAJAH

Respondents

Court File No. CV-15-521103

AND BETWEEN:

SUKANTHI MANISVASAGAN and SELVARAJAH PONNAMBALAM and

THAIYALNAYAKI SELVARAJAH

Applicants

– and –

CHITRA SUNDARAMPILLAI

Respondent

Lawrence Wallach for the Applicant

Arie Gaertner for the Respondents

Arie Gaertner for the Applicants

Lawrence Wallach for the Respondent

WRITTEN SUBMISSIONS ON COSTS

COSTS ENDORSEMENT

diamond j.:

Background

1On September 2, 2015, I released my Reasons for Decision granting the application of Chitra Sundarampillai (“Chitra”) for an order directing the partition and sale of the property municipally known as 38 Crittenden Square, Scarborough, Ontario (“the property”), together with a reference to a Master for the conduct of the sale of the property. At the conclusion of those Reasons, absent agreement between the parties, I requested that they exchange and file written submissions with respect to the costs of the applications.

2I have now received and reviewed written costs submissions from the parties. Chitra seeks costs of both applications payable forthwith on a substantial indemnity basis in the total amount of $60,936.66. In support of her position, Chitra submits that “almost every step taken by the respondents” was improper, vexatious, unnecessary and/or in breach of prior court orders made in this proceeding. Some of these prior events are summarized in paragraphs 7-8, 22-23 and 31 of my Reasons.

3In response, the respondents submit that as Chitra has already “acknowledged the value of her 1/3 interest in the property at the time of commencement of these proceedings to be $55,000.00”, the amount claimed by Chitra for costs is disproportionate to the amount recovered in this proceeding. The respondents also take issue with the amount sought by Chitra in light of previous costs orders made and fully paid in this proceeding.

4The respondents further submit that the appropriate disposition would be to either reserve costs to the Master overseeing the reference, or alternatively defer costs until the completion of that reference. In support of that position, the respondents rely upon the decision of Justice Perell in 365 Bay New Holdings Ltd. v. McQuillan Life Insurance Agencies Ltd. 2007 CarswellOnt 1924 (S.C.J.). In my view, 365 Bay has no application to the disposition of costs of this proceeding. In 365 Bay, Justice Perell ordered the costs of an action assessed “after liability and damages have both been determined” in a pending reference. In my Reasons, liability was determined. There is no dispute that Chitra is entitled to a 1/3 interest in the net sale proceeds of the property subject to any accounting issues raised on the reference. Accordingly, it is just and appropriate for the costs of the applications, incurred to date, to be determined at this stage.

Analysis

5Overall, the Court is required to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of a successful party with a goal of fostering access of justice: Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

6Pursuant to Rule 57.01 of the Rules of Civil Procedure, the Court may consider the following factors when exercising its discretion to award costs:

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.

7While there is no doubt that the respondents (a) were the cause of delay experienced by Chitra in prosecuting her application, and (b) failed to comply with prior interlocutory orders, in my view the fixing of costs on a substantial indemnity basis is not warranted. I note that the same misconduct about which Chitra complains has already resulted in the Court’s admonishment of the respondents, including the striking out of affidavit material. I believe costs fixed on a partial indemnity basis to be the appropriate scale.

8I do not find that the amount sought by Chitra is disproportionate to the amount at issue, especially given that the current value of Chitra’s 1/3 interest in the property has yet to be determined.

9I do not find the rates or hours charged by Chitra’s lawyers to be excessive or unreasonable, especially in light of the delay caused by the respondents. However, I do agree with the respondents that some of the items set out in Chitra’s costs outline seem to relate to time previously spent and covered by prior cost orders made by Justice Glustein and Justice Pollak.

Disposition

10Accordingly, in the circumstances of this case I find that Chitra is entitled to her costs of the applications fixed on a partial indemnity basis in the all-inclusive amount of $35,000.00 and payable forthwith. These costs may be paid to Chitra from the net sale proceeds (i.e. over and above the value of Chitra’s 1/3 interest in the property) subject to the discretion of the presiding Master if necessary.

Diamond J.

Released: October 6, 2015

CITATION: Sundarampillai v. Ponnambalam, 2015 ONSC 6072

COURT FILE NOs.: CV-14-517879; CV-15-521103

DATE: 20151006

ONTARIO

SUPERIOR COURT OF JUSTICE

PROCEEDING COMMENCED UNDER the Partition Act, RSO 1990, c P.4 and the Rules of Civil Procedure, RRO 1990, Reg 194, ss 14.05(3)(f), 14.05(3)(h) and 66.