Superior Court of Justice - Ontario

Citation: Bakshi v. Global Credit, 2016 ONSC 8095

Court File No.: CV-12-466367-CP

Date: 2016-12-23

Re: Sachin Bakshi, Plaintiff / Moving Party

And: Global Credit & Collection Inc., Defendant / Responding Party

Before: Justice Edward P. Belobaba

Counsel: Kenneth Alexander and Henry Juroviesky for the Plaintiff David Milosevic for the Defendant

Heard: July 14 and 15, 2016 with subsequent written submissions

Proceeding under the Class Proceedings Act, 1992

COSTS AWARD ON SUMMARY JUDGMENT MOTION

[1] In a decision released on November 10, 2016, I decided the determinative common issues in favour of the defendant and dismissed the class action.[^1] I have now reviewed the parties’ costs submissions.

[2] Both sides adopt extreme positions. The defendant asks for costs on a substantial indemnity basis in the amount of $162,609 inclusive of disbursements and taxes, because of a rejected Rule 49 settlement offer and because the plaintiff made unfounded allegations of fraud and dishonesty. The plaintiff says that no costs should be awarded because of the defendant’s “unacceptable behaviour” in denying that it had received any “remuneration” from Capital One when in fact a large payment had been received and because the defendant’s “winning” argument about “breakeven as a condition precedent” was only made “at the tail end of the proceeding.”

[3] In my view, neither of these extreme positions can be accepted. The plaintiff’s rejection of the defendant’s pre-motion offer, even if the offer was more favorable than the outcome, has no statutorily-mandated costs consequences and is simply a factor that may be considered under Rule 57.01 - as I do herein. As for the allegations of fraud or dishonesty in the “clipping” or editing phone call tapes, this is not a case where the plaintiff had “access to information sufficient to conclude that [the defendant] was merely negligent and neither dishonest nor fraudulent”[^2] Quite the contrary. The appropriate scale, if costs are awarded, is partial indemnity.

[4] Turning next to the plaintiff’s submission. This is not a case for no costs. The defendant was right to tell the plaintiff that no “remuneration” (the accepted meaning of which is payment for services) had been received from Capital One under the settlement agreement. The $5.7 million payment, as I concluded in my decision,[^3] was not compensation for work done on the returned post-dates but the settlement of a potential damages claim for wasted reliance expenses and defamation. And the suggestion that the “breakeven as a condition precedent” argument was only made “at the tail end of the proceeding” is not correct. As the defendant points out, this argument was advanced by the defendant (and even accepted by the plaintiff) “from day one.” I agree with the defendant that this point is supported by countless examples in the record. Indeed I myself made this point in my reasons for decision.[^4]

[5] In short, the defendant is entitled to costs but on a partial indemnity basis.

[6] The defendant’s costs outline, however, must be adjusted to conform to the hourly rates as set out in the well-known Grid. For example, Mr. Milosevic, an 11-year call is entitled to $235 per hour (not $300) and Mr. Fiske, a 7-year call, is entitled to $200 per hour (not $250). The fees portion, after adjustment, totals $70,916 and with taxes the final fees total is $80,225. The disbursements amount is $8562. The defendant’s overall total costs claim, on a partial indemnity basis, is therefore $88,787.

[7] The plaintiff, other than taking the position that no costs should be awarded, does not quarrel with the contents of the defendant’s costs outline. Nor does he suggest that these costs are excessive or unreasonable. This was a relatively complicated motion for summary judgment with an extensive record - more than three bankers’ boxes of filed material. A significant costs award in the range of $100,000 would not be surprising to the parties. I am therefore satisfied, having considered the factors set out in Rule 57.01, that the adjusted award of $88,787 is fair and reasonable.

[8] One final adjustment is needed. The $25,000 in costs that were awarded to the plaintiff on the certification motion were made payable to the plaintiff “in any event of the cause but only after the defendant’s summary judgment motion has been decided.”[^5] In other words, the plaintiff has a $25,000 credit that can now be deducted from the costs award herein.

[9] Costs are therefore fixed at $63,787 ($88,787 minus $25,000) and are ordered payable forthwith by the representative plaintiff to the defendant.

Belobaba J.

Date: December 23, 2016

[^1]: Bakshi v. Global Credit, 2016 ONSC 4610. The class action was certified on consent a year earlier on November 13, 2015: see Bakshi v. Global Credit, 2015 ONSC 6842. [^2]: Hamilton v. Open Window Bakery Ltd., [2004] 1.S.C.R. 303 (S.C.C.) at para. 26. [^3]: Bakshi v. Global Credit, 2016 ONSC 4610, at para. 33. [^4]: Ibid., at paras. 27-32. [^5]: Bakshi v. Global Credit, 2015 ONSC 6842, at para. 10.