Court File and Parties

Court File No.: CV-09-3333 Date: 2016-09-12 Superior Court of Justice - Ontario

Re: Jeremy Angel and Indra Seeta Angel, Plaintiffs And Monica Beepat and Royston Beepat and Giftland Office Max a company incorporated under the laws of Guyana and carrying on business in Guyana, and B. Singh, a.k.a. B. Sahadeo, Defendants

Before: Justice M.J. Donohue

Counsel: A. Misir, Counsel for the Plaintiffs K. Chatarpaul, Counsel for the Defendants

Costs Endorsement

[1] The parties were unable to resolve costs between them and provided written submissions to me. This is a matter for my discretion pursuant to section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

In the exercise of my discretion, I have considered the factors noted in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, where appropriate.

Success at Trial

[2] Seeta Angel obtained a judgment for $177,444.80 against Monica Beepat, net of $3,000.00 by which she mitigated her claim.

[3] In this trial, Ms. Angel sought payment from Ms. Beepat pursuant to a verbal agreement to purchase goods. I accepted her evidence.

[4] The defence suggested that the success at trial was mixed because the original claim sought payment for $183,000.00 for the goods rather than the $177,444.80, which I ordered. The defence also suggested success was divided because there was no award for the $75,000.00 claimed for aggravated damages nor was there an award for interest at 2% per month.

[5] However, in the course of trial, the plaintiff clarified that the claim was only for $180,444.18 and this is the amount they succeeded in being awarded but for a modest $3,000.00 in mitigation of their claim. The plaintiff was overwhelmingly successful on this central issue, in the face of the defence denying any agreement whatsoever.

[6] With respect to the claim for aggravated damage, there was almost no court time spent on this issue. The defence did not even address the issue in closing submissions.

[7] Similarly, regarding the claim for interest at 2% per month, there was almost no court time spent on this issue.

[8] I am satisfied that Ms. Angel is the successful party and is entitled to her costs.

Plaintiff’s Offer

[9] Plaintiff’s counsel submitted that they served an offer at least seven days before trial for $180,444.80 plus a dismissal of the defendants’ counterclaim.

[10] On the basis of that offer, plaintiff’s counsel seeks partial indemnity costs to the date of the offer and thereafter, substantial indemnity costs.

[11] Rule 49.10 provides such costs awards when the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle.

[12] The plaintiff succeeded in obtaining judgment for $177,444.80 plus interest and costs to be determined. A copy of the offer was not included in the submissions. Plaintiff’s counsel later advised he could not locate a copy. Without the actual terms of the offer, I am unable to determine if the judgment was more favourable.

[13] I am also unable to determine if the offer was Rule 49 compliant.

[14] As a result, I am not in a position to consider this offer in my assessment of costs.

[15] I find that the scale of costs appropriate is therefore partial indemnity costs. There were no other factors that would warrant the more generous substantial indemnity costs.

Overall Reasonableness of the Plaintiff’s Costs Claimed

[16] I note that the defence counsel’s actual costs amounted to $140,346.00 including disbursements of $7,648.00.

[17] Plaintiff’s counsel’s actual costs amounted to a lesser $127,247.18 including disbursements of $8,048.00.

[18] Overall, the plaintiff’s counsel appears to have incurred a similar, though lesser, amount of legal time and disbursements as the defence on this case.

[19] The plaintiff’s counsel included time for a junior lawyer as a second chair on four of the ten trial days. The defendants suggested that was unnecessary and unreasonable but I noted that the defendants had a student as a second chair for the entire trial to assist him. I find that the second chair for plaintiff’s counsel, particularly during the cross-examination of the defendant’s witnesses and in final submissions, was a reasonable cost.

Conduct of the Trial

[20] Defendants’ counsel pointed to the plaintiff’s action in withdrawing five admissions at the opening of trial, which were later admitted in court as a factor in the exercise of my discretion in ordering costs.

[21] I recognize the plaintiff’s behaviour in this regard but I balance it with the behaviour of the defendants. For example, the defendants produced critical documents in the middle of the trial and after the close of the plaintiff’s case. I also note that when we resumed court in September and the defendant was unable to attend, the day was wasted. Later in the trial, defendants’ counsel spent several hours of court time reading in admissions from the plaintiff’s discovery. Much of that could have been done at the September date with a savings of time and costs. In the alternative, the admissions could have been highlighted, copied and filed as a brief rather than being read aloud.

[22] Both plaintiff and defendants’ counsel had difficulty locating their documents throughout the trial and it ran very slowly. A five day trial became a ten day trial.

[23] I do not find that either party was more blameworthy than the other insofar as the conduct of the trial was concerned.

Disbursements

[24] The defendants argued that the disbursements were unnecessary or excessive. They provided no particulars to this argument.

[25] Looking at the listed disbursements critically, I find them to be reasonable, except for $750.00 claimed for staff overtime.

[26] I, therefore, reduce the disbursements from $8,048.00 to $7,298.00, which is less than the defence incurred in defending the claim.

Time Spent

[27] Defendants’ counsel argued that this was not a complex case. I disagree. The issue came down to credibility and required extensive cross-examinations and examination of numerous documents.

[28] It was apparent that getting information from Guyana, where the defendants’ business was located, and where the defendants reside, was difficult. Creating and following the paper trail would have taken time and effort.

[29] The defence argued that the plaintiff’s counsel claimed 5.6 hours to arrange discoveries. The bill of costs, however, actually says that 5.6 hours was spent on that as well as “discussions and correspondence with the defendants’ counsel following close of pleadings.” I find that the time stated to be reasonable.

[30] The defence disputed the time of 48.5 hours for preparation for discovery. The bill of costs, however, includes the attendance at discovery and disclosure of documents. This also seems reasonable, as it appears at least two and a half days were spent at discovery.

[31] Plaintiff’s counsel claims 18.8 hours for the preparation for pre-trial. The defence suggests that this was unreasonable as the file was clearly not going to settle at pre-trial. I find, however, that it is reasonable for a plaintiff to make their best case prepared for pre-trial as through compromises and assessment of risks parties frequently can settle the “unsettle-able.”

[32] Plaintiff’s counsel claims 22 hours for arranging a date for trial. Defence counsel argues that this is unreasonable. It appears that a motion was required and an order was made by Van Melle, J. The plaintiffs were ordered to pay costs to the defence of $1,700.00 in this regard. I agree with the defence that plaintiff’s counsel should not be including that time in their bill of costs.

[33] I, therefore, reduce plaintiff’s counsel’s fee costs by 22 hours x $350 = $7,700.00.

Conclusion

[34] Plaintiff’s counsel claimed partial indemnity costs of $102,419.95 inclusive of H.S.T. and inclusive of disbursements.

[35] In light of my reduction of $7,700.00, I allow costs of $75,815.00 plus H.S.T. of $9,855.95, for a total of $85,670.95.

[36] In light of my reduction of $750.00 in disbursements, I allow disbursements of $7,298.00.

[37] I order the defendant Monica Beepat to pay costs of $92,968.95, inclusive of H.S.T. and inclusive of disbursements, to the plaintiff Seeta Angel.

Justice M. J. Donohue Released: September 12, 2016