Kermani v. Hung Fung Yuen Corporation, 2016 ONSC 493

CITATION: Kermani v. Hung Fung Yuen Corporation 2016 ONSC 493

COURT FILE NO.: CV-12-462868

DATE: 20160121

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MITRA KERMANI Plaintiff

– and –

HUNG FUNG YUEN CORPORATION, THOMAS WONG Defendants

Plaintiff appearing in person

Marcel Strigberger, for the Defendants

HEARD: December 18, 2015

COSTS ENDORSEMENT

HOOD J.

[1] In compliance with my endorsement of December 18, 2015 I have received the defendants’ costs submissions dated January 7, 2016, consisting of two pages of submissions, a Bill of Costs and two Offers to Settle served on the plaintiff.

[2] On January 8, 2016 I received what I understood to be the plaintiff’s costs submissions in response. I had directed that any responding submissions were to be two pages in length. What I received was ten pages of single-spaced typing. I have attempted to read the plaintiff’s costs submissions. I find it difficult to discern what submissions relate to the costs being sought by the defendants, what relate to my decision of December 18, 2015 dismissing the plaintiff’s claim and what relate to her attempts to have the defendants’ summary judgment motion heard again before a different judge.

[3] As best as I can determine the plaintiff submits as follows: the amount being sought is excessive, I should not order any costs as it would be premature to do so in light of her intention to have another judge hear another summary judgment motion, the amount being sought is more than what was asked for in one of the offers and is therefore an example of the defendants’ fraud, she has paid her own lawyers $9,000 and the $5,000 deposit from the real estate transaction has been lost so costs should not be ordered, the disbursement costs claimed by the defendants are excessive although her disbursements are more, her claim is not finished despite the dismissal order as the damage part of the claim must now be considered so costs should not be ordered, the defendants should not be awarded costs as they did not reply to her volumes of responding materials, the defendants’ counsel’s argument was only 90 minutes, and because her name was not on the Agreement of Purchase and Sale she has no liability on the agreement and therefore no liability for costs.

[4] Being successful on their motion, the defendants are entitled to costs whether or not the plaintiff is successful in her attempt to obtain another summary judgment motion. None of the plaintiff’s arguments, as set out above, disentitle the defendants to costs. The defendants are asking for $33,418.48 for fees, disbursements and HST.

[5] The fixing of costs is a discretionary decision 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 of the Rules. These include the principle of indemnity for the successful party, the reasonable expectations of the unsuccessful party, the amount claimed and recovered, 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.

[6] The matter proceeded through pleadings, the exchange of affidavits of documents and discovery prior to the summary judgment motion. The time up to the summary judgment motion I find to be reasonable although the hourly rate sought is too high considering the actual hourly rate charged. I find a more reasonable rate to be $250/hour on a partial indemnity basis. With respect to the summary judgment motion, while I can understand the defendants’ frustration with the plaintiff’s materials being unnecessarily lengthy and prolix and mostly irrelevant I find the time spent to be somewhat excessive as there were no complex legal issues in play nor any overly complex factual issues.

[7] In all of the circumstances I find the costs of the action including the motion, inclusive of HST and disbursements, to be $22,500, payable by the plaintiff to the defendants within thirty (30) days of today’s date.

HOOD J.

Released: January 21, 2016