Superior Court of Justice – Ontario
Citation: Jassal v. Kaith, 2016 ONSC 3650
Court File No.: CV-13-0221-00
Date: 2016-06-29
Re: Mohanjit Singh Jassal
And: Pawan Kaith, Bibi Kaith and Kundan Kaith
Before: LeMay J.
Counsel: R. Swaine, Counsel for the Plaintiff R. Thapar, Counsel for the Defendants
COSTS ENDORSEMENT
LEMAY J
[1] In my reasons dated April 27th, 2016, I dismissed the Plaintiff’s claim in its entirety. I now consider the issue of costs.
[2] The Defendant is seeking the sum of $75,000.00 in costs, inclusive of HST and disbursements. The Defendant advances four reasons for this position, as follows:
a) The Plaintiff, Mr. Jassal, engaged in reprehensible misconduct, as well as conduct that unnecessarily increased the costs of this case.
b) The Plaintiff refused to admit the truth of many allegations contained in a request to admit served by the Defendant. Many of these allegations were subsequently proven at trial.
c) The Plaintiff’s claim that he did not understand English was not true, but required the Court to use an interpreter which lengthened the trial.
d) The Plaintiff rejected an offer to settle, which would have resulted in the dismissal of the action without costs for any work up to and including August 24th, 2015, with substantial indemnity costs to be paid after that time. This is an offer that, in the Defendant’s view, may trigger the costs consequences under Rule 49 of the Rules of Civil Procedure.
[3] The Plaintiffs resist the costs claim of the Defendants on three grounds:
a) This case was heard and determined under the simplified rules.
b) The Defendant and its counsel were the parties who delayed the proceedings and wasted time, particularly on the discoveries that were held in this matter.
c) The costs claimed by the Defendants are grossly excessive in the circumstances. In support of this position, the Plaintiff has submitted a bill of costs for $13,321.54, inclusive of disbursements and HST.
Analysis
[4] The analysis of what amounts should be ordered for costs starts with a consideration of the factors listed in Rule 57.01(1). Of those factors, I consider the following to be the most important in this case:
a) The existence of an Offer to Settle.
b) The conduct of a party that tended to shorten or lengthen the proceedings.
c) The denial or refusal to admit anything that should have been admitted.
d) 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.
[5] In addition, the Defendants have raised the question of whether the Plaintiff should pay substantial costs because the Plaintiff provided false testimony to the Court.
[6] I start with the Offer to Settle. The Plaintiff could have achieved a dismissal without costs of this case in August of 2015. In the result, they were less successful than this Offer, as the action was dismissed with costs. In the circumstances, I am of the view that this is a significant factor that strongly supports an award of substantial indemnity costs in this case.
[7] This brings me to the conduct of a party that tended to shorten or lengthen the proceedings. The Plaintiff has alleged that the Defendants wasted time because they did not prepare a discovery plan quickly enough, and they wasted time at discoveries. I reject both of these assertions. The issues relating to the discovery plan have already been addressed by a costs Order of Bielby J., and I do not see any evidence of any wasted time at discovery.
[8] Then, there is the conduct of the Plaintiff in this action. The Defendants argue that the Plaintiff provided false information, and should face substantial indemnity costs. In support of this argument, they point to the decisions in Moreira v. Dasilva ((1977) 5 C.P.C. 73) and Hawley v. Bapoo (2006 CanLII 24333 (ON SC), 82 O.R. (3d) 382). In Hawley, Ducharme J. stated:
I prefer these latter authorities, as there are few types of conduct engaged in by litigants that are more deserving of judicial disapprobation than perjury or knowingly leading false evidence. Such behaviour increases the costs incurred by the innocent party, dissipates the resources of the court, undermines the integrity of the trial process and can perilously complicate the search for justice. The costs sanction is one of the few ways a court can signal its disapproval of such [page 392] conduct and make it clear to other litigants that such behaviour will not be condoned.
[9] In my view, characterizing the testimony of the Plaintiff as perjury may be too strong. However, I am of the view that the Plaintiff unreasonably pursued this action when it should have been obvious to him that he had no chance of success. I stated in my reasons that “[the Plaintiff’s] evidence was tailored so that it fit the outcome he was trying to achieve”. My reasons review in detail the flaws with the testimony provided by both the Plaintiff and his wife.
[10] The Plaintiff’s conduct in this case should be strongly discouraged by the Court. One of the tools that the Court has to discourage this type of conduct is a costs award. In my view, the conduct of the Plaintiff in and of itself would justify an award of substantial indemnity costs in this case. The Plaintiff pursued a case that he knew had no merit, and tried to mislead the Court into believing that the case had merit.
[11] Third, there is the denial or refusal to admit facts that should have been admitted. The Defendants point to a detailed Request to Admit that they served on the Plaintiff in this case. The Plaintiff denied a number of facts that, in my view, should have been admitted. In the circumstances, this is also a factor that supports an award of substantial indemnity costs in this case.
[12] Finally, there is the question of the costs that the Plaintiff could reasonably expect to pay. The Plaintiff has submitted a bill of costs for a total of $13,321.54, inclusive of HST and disbursements, and the Plaintiff points to this bill and says that it shows that the Defendants’ claim for $70,000.00 all-in is grossly excessive.
[13] I reject this assertion for a number of reasons. First, this was a trial that spanned five days or part days of Court time. Mr. Swaine has only claimed $7,350.00 for these five days of appearances, and has claimed that there was only ten (10) hours of Court time for this trial. I recall the trial taking longer than that amount of time.
[14] Second, the work that would have been required for trial preparation was increased by the fact that there was an approximately six (6) month gap between the third and fourth day of trial. As a result, some additional preparation time would have been reasonably expected for both sides. The amount of trial preparation time that the Plaintiff has claimed seems to me to be unreasonably low.
[15] Third, I invited both counsel to prepare written argument on this case, given the delay between days of evidence. This would have added to the out of court time spent by both counsel on this case. Again, this suggests that the amount of time that the Plaintiff claims was spent on this case is unreasonably low.
[16] Finally, total lawyer fees of $10,750.00 for the entire five day trial and the preparation time seem to me to be unrealistically low. This number sounds more like the substantial indemnity costs associated with a one day summary judgment motion.
[17] For these reasons, the Plaintiff’s bill of costs does not appear to me to reflect, in any way, the actual amount of time that was spent on this case by either party. As a result, I am not prepared to use that bill of costs to assess what the Plaintiff’s reasonable expectations were in this case, and I unreservedly reject it.
[18] I am of the view that the Defendants’ costs of $70,000.00 are significantly closer to what the reasonable expectations of the parties would have been in this case. However, given that this was a relatively straightforward trial, I am of the view that the amount claimed by the Defendants is excessive. It is clear to me that a great deal of preparation work went into Mr. Thapar’s closing submissions, including extensive review of the transcripts from trial. It is also clear to me that a great deal of preparation went into the rest of the trial.
[19] In the circumstances, I am of the view that some reduction in the amount of time spent by Mr. Thapar is appropriate. As a result, I am of the view that the costs claimed by the Defendants should be reduced by around 20 percent to take into account the fact that the reasonable expectations of the parties would have been that the costs were lower.
[20] As a result, I am of the view that the Plaintiff should pay the sum of $50,000.00 inclusive of HST and disbursements to the Defendants on account of the costs of this action.
Disposition
[21] Having considered all of the facts in this case, I am of the view that it is reasonable for the Plaintiff to pay the Defendants’ costs in the sum of $50,000.00 inclusive of HST and disbursements within thirty (30) days of the release of these reasons.
LEMAY J
Released: June 29, 2016
CITATION: Jassal v. Kaith, 2016 ONSC 3650
COURT FILE NO.: CV-13-0221-00
DATE: 2016-06-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mohanjit Singh Jassal
Plaintiff
- and -
Pawan Kaith, Bibi Kaith and Kundan Kaith
Defendants
COSTS ENDORSEMENT
LEMAY J
Released: June 29, 2016