CITATION: 2304347 Ontario Inc. v. Kumarasasarma, 2016 ONSC6680
COURT FILE NOS.: CV-13-484007
DATE: 20161027
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
2304347 ONTARIO INC. (Carrying on Business as “DFSIN MISSISSAUGA”)
Plaintiff
– and –
MAHAGANAPATHIKURUKAL KUMARASASARMA, also known as KUMARASASARMA MAHAGANAPATHIKURUKAL and AMANJOT MALHI also known as AMANDOT MALHI also known as MALHI AMANDOT
Defendants
Gerald Matlofsky, for the Plaintiff
Tarunjeet Gujral, for the Defendant, Mahaganapathikurukal Kumarasasarma
HEARD: WRITTEN SUBMISSIONS
COSTS ENDORSEMENT
DIAMOND J.:
[1] At paragraphs 41-42 of my Endorsement released on August 29, 2016, I invited the parties to exchange and deliver written submissions if they were unable to agree on the issues of the plaintiff’s costs thrown away, and the costs of the defendant’s motion to set aside the default judgment. I have now received and reviewed those written submissions.
[2] Dealing first with the plaintiff’s costs thrown away, at paragraph 40(c) of my Endorsement, I found that the plaintiff was entitled to payment of its costs thrown away (as a result of obtaining the default judgment) on a substantial indemnity basis and payable forthwith. Notwithstanding this finding, the defendant now apparently argues that the plaintiff’s costs thrown away should be awarded on a partial indemnity basis. In my view, this issue has already been determined and is not subject to further argument.
[3] I have reviewed the plaintiff’s Bill of Costs. Counsel for the plaintiff submits that as he has been practicing for 25 years, he is entitled to “$350.00 per hour for partial indemnity costs times 1.5 as per Mini Grid for a substantial indemnity rate of $487.50 per hour”. I cannot locate any reference in the plaintiff’s Bill of Costs (or for that matter its costs submissions) to the actual, full indemnity rates charged by counsel for the plaintiff.
[4] In my view, a reasonable substantial indemnity rate to be charged in the circumstances of this case would be $425.00 per hour, and I have used that figure in my assessment of the plaintiff’s costs submissions.
[5] In reviewing the time charged by counsel for the plaintiff, I note that there are several entries relating to the preparation of an application relating to enforcement proceedings commenced by the second mortgagee. In my view, those costs are not recoverable in this proceeding, and are properly the subject matter of those enforcement proceedings.
[6] In addition, the plaintiff is seeking compensation for a $5,000.00 disbursement relating to a fee paid to the Sheriff of the Regional of the Municipality of Peel, presumably in furtherance of efforts to sell the Mountain Ridge property pursuant to the default judgment. As no sale in fact took place, most, if not all, of the $5,000.00 retainer fee ought to be returned to the plaintiff by the Sheriff’s Office.
[7] Having reviewed the plaintiff’s Bill of Costs, I fix the plaintiff’s costs thrown away on a substantial indemnity basis in the all-inclusive sum of $16,500.00.
[8] With respect to the costs of the defendant’s motion, the defendant seeks costs of that motion on a full indemnity basis in the all-inclusive amount of $18,652.14. The defendant relies upon his counsel’s letter dated May 25, 2006 sent to counsel for the plaintiff, and which provided as follows:
“This is without prejudice – if you consent to setting aside the default judgment dated February 6, 2015, we can argue on costs.”
[9] In my view, the above sentence does not amount to a formal offer to settle the motion in order to trigger the costs consequences of rule 49.09 of the Rules of Civil Procedure. To begin, my Endorsement did set aside the default judgment, but on terms not provided for in the said letter. In addition, the phrase “we can argue on costs” is not explicit enough to have allowed the plaintiff the opportunity to recover its costs thrown away (which was a result the plaintiff achieved in any event).
[10] The plaintiff argues that there was divided success on the defendant’s motion, as the default judgment was set aside on the terms set out in paragraphs 40(a) and 40(b) of my Endorsement. Those paragraphs provided the plaintiff with additional security, and were essentially agreed to by the defendant during the hearing of his motion.
[11] Some of the costs sought by the defendant were incurred on an “urgent basis”, which tended to increase the hours sought in the defendant’s Bill of Costs. As found in paragraph 23 of my Endorsement, I was and remain not satisfied the defendant moved expeditiously to bring his motion.
[12] As always, I am mandated to consider what is “fair and reasonable” in fixing costs of the defendant’s motion with a view to balancing compensation of the successful party with a goal of fostering access to justice: Boucher v. Public Accountants Council (Ontario) (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
[13] In my view, while success was not divided in the classic sense, the defendant ought to be awarded his costs of the motion on a partial indemnity basis to reflect his moderate success. In the circumstances of this case, I award the defendant his costs of the motion fixed on a partial indemnity basis in the all-inclusive amount of $3,500.00.
Diamond J.
Released: October 27, 2016
CITATION: 2304347 Ontario Inc. v. Kumarasasarma, 2016 ONSC6680
COURT FILE NOS.: CV-13-484007
DATE: 20161027
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
2304347 ONTARIO INC. (Carrying on Business as “DFSIN MISSISSAUGA)
Plaintiff
– and –
MAHAGANAPATHIKURUKAL KUMARASASARMA, also known as KUMARASASARMA MAHAGANAPATHIKURUKAL and AMANJOT MALHI also known as AMANDOT MALHI also known as MALHI AMANDOT
Defendants
COSTS ENDORSEMENT
Diamond J.
Released: October 27, 2016