Court File and Parties

COURT FILE NO.: 15-65185 DATE: 20160913

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

NAVIN DATTA, NAND DATTA and NITIN DATTA Plaintiff/Responding Parties – and – LINDA ANDERSON, ROGER CHAPMAN, SARAH MCMILLAN, ANDREW CAUTY, 1470525 ONTARIO INC. c.o.b. as MALWOOD AGGREGATE LTD., HYDRO ONE NETWORK and THE CITY OF OTTAWA Defendants/Moving Parties

Counsel: Cheryl Letourneau, for the Plaintiffs/Responding Parties Robert D. Ryan, for the Defendant/Moving Party, Hydro One Network Patricia Lawson, for the Defendants/Moving Parties, Sarah McMillan and Andrew Cauty No one appearing for the other Defendants

AND BETWEEN

HAFIZUDDIN KHAN and RODABA KHAN, Plaintiffs/Responding Parties – and – LINDA ANDERSON, ROGER CHAPMAN, SARAH MCMILLAN, ANDREW CAUTY, 1470525 ONTARIO INC. c.o.b. as MALWOOD AGGREGATE LTD., HYDRO ONE NETWORK and THE CITY OF OTTAWA Defendants/Moving Parties

Counsel: Cheryl Letourneau, for the Plaintiffs/Responding Parties Robert D. Ryan, for the Defendant/Moving Party, Hydro One Network Patricia Lawson, for the Defendants/Moving Parties, Sarah McMillan and Andrew Cauty No one appearing for the others

Heard: By written submissions

DECISION ON COSTS

T. D. Ray J.

[1] I granted judgement in favour of the defendants Hydro One Networks (“Hydro”); and McMillan and Cauty (“neighbours”) following their motions for summary judgement for dismissal of both actions (15-65185 and 15-65161) as against them on the ground that there was no merit to either action as against all of the defendants, and on the ground of the limitation defence as against Hydro. (2016 ONSC 5006).

[2] The neighbours and Hydro each seek substantial indemnity costs in the amount of $6400 and $6500, respectively, in each of the actions. I cannot accept that I should assess the costs as claimed for each action since the plaintiffs in both actions were represented by the same counsel. The actions were identical in pith and substance even though each of the plaintiffs was on a slightly different factual footing. Clearly the Plaintiffs in the Khan action were the more assertive, and required more services by the defendants to defend that action. However, leaving that aside, the actions were treated as one with similar allegations and identical prayers for relief.

[3] The plaintiffs take the position that the claims for costs are excessive. The plaintiffs’ costs outlines in each action set out their costs at $4,373.00 substantial indemnity, for a total of $8,746.00 just for the motion. The successful defendants are entitled to their costs of the motion and of the actions. In principle I do not find the defendants’ claims to be excessive. However, to assess the defendants’ costs at $12,800 and $13,000 respectively would not take into account the duplication inherent in dealing with the two actions. I consider that $9,000 for each of Hydro and the neighbours appropriately takes into account the duplication of services and includes the costs for the motion and the actions on a discounted basis. It also properly reflects the difference between the plaintiffs’ costs outline for just the motion at $8,746.00, and the defendants’ entitlement to costs of the motion and the actions.

[4] The defendants’ costs are therefore assessed at $9,000 for Hydro and $9,000 for the neighbours in the combined actions. Specifically $4500 is to be paid by the Khans to Hydro, and $4500 is to be paid by Datta; with $4500 to be paid by the Khans to the neighbours, and $4500 by Datta.

[5] In the penultimate paragraph of my decision, I alluded to the motive of the plaintiffs in bringing these actions. This point was not argued in submissions by the defendants. However, had it been pursued I would have been open to an award of a complete indemnity costs. My reasons are simple. In addition to the question of the motive of the plaintiffs, their claims were totally devoid of merit.

Mr. Justice Timothy Ray Released: September 13, 2016