Joshi v. National Bank of Canada, 2016 ONSC 4394

Court File and Parties

CITATION: Joshi v. National Bank of Canada, 2016 ONSC 4394
COURT FILE NO.: CV-14-509765
DATE: 20160704

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

RAJESH JOSHI
Plaintiff/Responding Party

– and –

NATIONAL BANK OF CANADA
Defendant/Moving Party

Counsel:
Priya Sarin for the Plaintiff/Responding Party
Alex Cameron/Nicholas Robar for the Defendant/Moving Party

HEARD: Written Submissions

COSTS ENDORSEMENT

DIAMOND J.:

[1]

Background

In my Endorsement released on May 26, 2016, I granted part of the relief sought by the defendant on its motion to strike. In summary,

a) I granted the defendant’s motion to strike the plaintiff’s claim for intentional interference with economic relations (paragraphs 1(a) and 19-24 of the Amended Fresh as Amended Statement of Claim), albeit with leave to amend; and

b) I dismissed the defendant’s motion to strike the plaintiff’s claim for breach of the duty of good faith, but ordered the plaintiff to provide particulars of paragraphs 12 and 34-36 of the Amended Fresh as Amended Statement of Claim.

2Absent an agreement between the parties, I asked for costs submissions to be exchanged and filed with my assistant. I have now received and reviewed those costs submissions.

[3]

Positions of the Parties

Neither party disputes that normally, costs should follow the event. Unfortunately, the parties disagree as to both the nature and scope of the “event”.

4The defendant submits that it was the successful party as both the plaintiff’s claims were held to be deficient resulting in those claims either being struck, or subjected to an order for further particulars. It seeks costs of the motion on a partial indemnity basis in the all-inclusive amount of $10,000.00.

5The plaintiff submits he was successful in resisting the defendant’s attempts to strike the claims for breach of the duty of good faith. He seeks costs of the motion on a partial indemnity basis in the all-inclusive amount of $5,000.00, or in the alternative an order that there be no costs awarded due to the mixed success achieved by the parties.

[6]

Analysis

As always, 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), 71 O.R. (3d) 291 (C.A.).

7Pursuant 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.

8In my view, success was not divided. I agree with the defendant’s submissions that the plaintiff’s position in support of his claim for breach of the duty of good faith morphed between the time of the filing of the motion and the hearing date. A review of my Endorsement discloses that not only was there a need to read the Amended Fresh as Amended Statement of Claim extremely liberally (as the Court is mandated to do on motions to strike), but the plaintiff’s key responding submission (i.e. the defendant’s investigation into the plaintiff’s alleged misconduct was commenced before he resigned, and he was not made aware of that investigation nor given an opportunity to respond) was not explicitly set out in his pleading, thus requiring further particulars.

9The plaintiff further submits that the defendant’s costs are excessive and inflated in light of the moderate complexity of the motion. While I find the presence of some “over-resourcing” on the part of the defendant, in my view most of the hours and hourly rates claimed appear to be reasonable.

[10]

Disposition

In the circumstances, and having regard to the results achieved, the reasonable expectations of the parties, and the hours claimed, I award the defendant its costs of the motion fixed in the all-inclusive amount of $8,000.00 and payable by the plaintiff forthwith.

Diamond J.