COURT FILE NO.: CV-14-509707

DATE: 20151104

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Veritas Investment Research Corporation and Neeraj Monga, Plaintiffs and Moving Parties

AND:

Indiabulls Real Estate Limited and Indiabulls Housing Finance Limited, Defendants and Responding Parties

BEFORE: Sean F. Dunphy J.

COUNSEL: H. Scott Fairley and John Archibald, for the Plaintiffs/Moving Parties

Lindsay Lorimer and Stephen Brown-Okruhlik, for the Defendants and Responding Parties

HEARD: September 29, 2015

COSTS ENDORSEMENT

[1] On October 2, 2015, I dismissed the urgent injunction application brought by the plaintiffs with written reasons (at 2015 ONSC 6040). As requested by me, the parties have provided me with their respective submissions on the matter of costs. This is therefore my ruling on the issue of costs that I had taken under reserve.

[2] This was a substantial motion brought on an allegedly urgent basis for an anti-suit injunction in respect of a matter where the moving parties had approximately 90 days advance notice of the proceeding they were seeking to enjoin. The “urgency” of the motion related solely to the fact that the time for responding to a proceeding in India that they had long since determined not to defend in India was approaching. A very large volume of material was dumped upon the responding defendants with almost no effective notice. The responding defendants had no effective opportunity to assemble a coherent response to the materials.

[3] I found that the approach of the plaintiffs appeared to me to be tactical. The urgency was manufactured given the very long period of time the plaintiffs had to bring a proper anti-suit injunction. A date could have been scheduled and a proper time line for exchange of materials established by consent or by court order in CPC all giving the parties and the court adequate time to assess the situation before the spectre of a default judgment in India arose. The parties are clearly having at each other in litigation spanning two continents. Tempers flare and emotions can run high in such situations. That is no excuse for counsel – all of whom are experienced - to fail to engage with each other and the court having proper regard to our Rules of Civil Procedure, civility and fairness.

[4] I find that I must concur in the submissions of counsel for the responding defendant. She and her client were put through a weekend of significant pressure and had to defend her clients’ interests with at least one hand tied behind her back. The allegations made against her clients were very serious and included allegations of serious misconduct. Her ability to respond to them in any meaningful way was seriously impaired by the short notice and the wide variety of issues placed in issue by this motion.

[5] I fully appreciate the plaintiffs have views on forum of necessity and the fairness with which they may be dealt in India. However, the basis of virtually all of those fears and allegations arose from facts known to the plaintiffs many months prior to the urgent motion. There were almost no facts of recent vintage placed before me – the expiry of time limit for responding to a proceeding is not a new fact since the countdown started with service of process. This could and should have been done differently.

[6] Such tactical maneuvering warrants recognition in any costs award I shall make. In the circumstances, a substantial indemnity award is, in my view, warranted.

[7] Having determined to award substantial indemnity costs, it remains for me to fix the amount.

[8] The plaintiffs claim that their own actual costs were very close to the level of substantial indemnity costs that the defendants submitted were incurred in responding to this motion. The plaintiffs are quite correct in pointing out that the process of fixing costs – including substantial indemnity costs – is not limited to a mechanical calculation of hours multiplied by a rate pulled from a grid. Rule 57.01 of the Rules of Civil Procedure as well as common sense prescribe that this is but one factor to be taken into account.

[9] This was an injunction motion. The reasonable expectations of both parties to such a motion is that it involves a time intensive, and thus expensive, engagement by both sides. The defendants have submitted a cost outline that is not a paragon of detail. Time reviewing the motion material, preparing for the motion, reviewing the reasons and preparing a costs outline are all jumbled together in one block. The amount of time claimed is between 22 and 29 hours for two partners as well as further time for an associate and an articled student. An appearance fee of $6,102 is claimed for two counsel at the hearing. Of the amount claimed, more than $7,000 relates to time charged by an articled student and a junior associate. The total claimed was $33,247.43.

[10] Applying a reasonableness standard, including the amount an unsuccessful litigant can expect to pay on such a motion (when costs are awarded on a substantial indemnity scale) propels me to a number which is somewhat lower than that.

[11] In my view, a substantial indemnity award of $27,500 would be fair and reasonable in all of the circumstances. Substantial indemnity does not provide – and is not intended to provide – a full recovery of costs. In my view, the amount I have awarded represents a significant premium over partial indemnity recovery but remains tethered within the bounds of reasonableness that I must also have regard to.

[12] I therefore fix the successful responding defendants’ costs at $27,500 payable within thirty days as prescribed by Rule 57.03(1)(a) of the Rules of Civil Procedure.

Sean F. Dunphy J.

Date: November 4, 2015