ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-432941
DATE: 20151109

BETWEEN:

ZAKKARIYA MUNAS

Plaintiff

– and –

Zameer Nasser Dhanani, KARIMA DHANANI, Vince Henderson, 1795614 Ontario Inc., c.o.b. as Road Star Car Rental, Christiane Ingrid Mackenzie and John S. Mackenzie and Wasiu Yusuf

Defendants

Peter S. Carlisi, for the Plaintiff

Lorraine E. Takacs, for Wasiu Yusuf
Carl Vondercrone for John MacKenzie
and Christiane Ingrid MacKenzie
Jocelyn Brogan for 1795614 Ontario Inc. c.o.b. as Road Star Car Rental

HEARD: August 18, 2015

COSTS ENDORSEMENT

[1] I have received the costs submissions of the plaintiff and the defendant, Yusuf.

[2] The defendant was successful on the motion and presumptively is entitled to costs. As this was a motion for summary judgment dismissing the claim as against this defendant, he is entitled to costs not only of the motion but also of the action.

[3] The plaintiff argues that since I did not rule on it he ought to be awarded costs with respect to the portion of the motion that dealt with the negligence of Yusuf and the defendant, Vince Henderson (“Henderson”), and whether there was a genuine issue as to their fault for the accident. I do not agree with this argument. There is no entitlement to costs on a matter I did not rule upon. In any event, most of the motion as argued before me dealt with the limitation issue. Very little time was spent on the issue of fault for the accident. This argument is like an argument for a distributive costs award. That sort of award is to be avoided. Yusuf was successful on the motion. It does not matter that one of the arguments was not considered in arriving at my decision.

[4] The defendant, Yusuf, asks for full indemnity costs due to delays, endless disputes over non-contentious issues, and the volume of correspondence and materials from the plaintiff’s counsel. As one example, on the summary judgment motion, the plaintiff brought two “cross-motions” of his own with large motion records which should have been brought before the Master. Another example of the type of conduct the defendant is complaining about is the plaintiff’s costs submissions. The plaintiff argued, in my view, unreasonably, that I should disregard Yusuf’s costs submissions as the submissions exceeded my direction of three pages. They did so by nine lines. At the same time, the plaintiff’s submissions were three pages of single-spaced submissions using a minimal font size with minimal margins, all contrary to Rule 4.01(1). The plaintiff’s submissions were substantially more than three pages if properly spaced, with proper margins and proper font size. Apparently because only three actual pieces of paper had been used, the plaintiff felt he had complied with my direction, when he clearly had not. These are but two examples of the sort of conduct this defendant is complaining about.

[5] However, I am not prepared to order full indemnity costs. This scale is reserved for exceptional cases where there is reprehensible conduct that goes beyond the conduct justifying an award of substantial indemnity costs. While I find much of the plaintiff’s conduct to be questionable, I am not prepared to make such an onerous costs award. Accordingly, the scale of costs is on a partial indemnity basis.

[6] On this scale, Yusuf asks for $22,784.00 for the motion inclusive of fees, disbursements and HST, and a further $23,184.00 for the action itself again inclusive of fees, disbursements and HST for a total of $45,968.00.

[7] The fixing of costs is discretionary 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. These include the principle of indemnity for the successful party, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Overall, I am required to consider what is fair and reasonable for the unsuccessful party to pay rather than the actual costs incurred by the successful party, although that is a factor. As to the reasonable expectations of the plaintiff, he provided a costs outline for his own costs for the summary judgment motion. On a partial indemnity basis, the plaintiff’s costs amounted to $43,700.00 inclusive of HST and disbursements. In comparison, the total partial indemnity costs for Yusuf for the motion and action amount to $45,968.00. Clearly the amounts sought by Yusuf are within the plaintiff’s reasonable expectations. Having said that, I find some of the time being sought by Yusuf to be excessive.

In all of the circumstances, and in the exercise of my discretion, I consider costs in the amount of $35,000.00, inclusive of HST and disbursements, to be a reasonable amount for the action, inclusive of the motion costs, and well within the contemplation of the plaintiff.

Hood J.

Date: November 9, 2015