Court File and Parties

COURT FILE NO.: 1983/15 DATE: 2017 04 06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hong Linh Dang AND: Natalie Anderson

BEFORE: Trimble J.

COUNSEL: K. Juriansz for the Defendant/Applicant A. McLennan for the Plaintiff/Respondent

HEARD: In Writing

Costs Endorsement

[1] On 3 March 2017 I dismissed Ms. Dang’s action and ordered the $72,230 held in court to be paid to Ms. Anderson’s solicitors. I invited costs submissions as to the costs of the motion and the action. This is the costs decision in respect of that motion, and for the action.

Positions of the Parties

[2] The Defendant seeks substantial indemnity costs for the motion of $3,627.23, all inclusive, for the motion, and partial indemnity costs for the action of $28,388.09. The latter sum includes $17,021 for partial indemnity fees, $4,654.36 in disbursements, and $4,500 for fees and disbursements paid to Ms. Anderson’s previous counsel. Ms. Anderson points out that her former lawyers dealt largely with the motion to remove the CPL heard by Gibson, J., and the actual removal and payment into Court. Gibson, J. reserved costs on that motion to the trial judge. Since Ms. Anderson’s current counsel cannot accurately address those fees on a partial indemnity basis, he claims only 50% of the actual solicitor and client bill.

[3] The Plaintiff says that the costs demanded are unreasonable, unfair for the Plaintiff to pay, and disproportional.

Decision

[4] For the reasons that follow, I fix the costs of the motion before me at $2,500.00 all inclusive, and the costs of the trial at $24,104.36. The Plaintiff shall pay these sums to the Defendant’s solicitors in cash, bank draft or money order, by 4 p.m., 5 May, 2017.

Analysis

[5] Under s. 131 of the Courts of Justice Act, and Rule 57.01 of the Rules of Civil Procedure costs are discretionary. In assessing costs, I must consider the cases that have outlined broad principles with respect to costs under s. 131.

[6] Costs awards have a number of purposes, including to a) indemnify successful litigants, b) encourage settlement, c) correct behaviour of the parties, and d) discourage frivolous or ill-founded litigation (see 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, at para. 10). Generally costs should follow the event (see Bell v. Olympia & York (1994), 17 O.R. (3d) 135 (C.A.)), be proportional to the issues in the action and the outcome, and be reasonable for the losing part to pay, all circumstances considered (see Boucher v. Public Accountants, (2004), 71 O.R. (3d) 291 (C.A.) and Moon v. Sher et al., [2004] OJ No 4651 (C.A.)). Conduct of the parties is also relevant where it deserves sanction (see Davies v. Clarington (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.)). One party’s playing “hardball” is a relevant factor to consider (see 394 Lakeshore, supra).

[7] A Judge in fixing of costs is engaged in a different exercise than an Assessment Officer engaged in assessing costs. The Judge does not engage in an arithmetical exercise. Rather, she or he fixes costs in an amount that is reasonable for the unsuccessful party to pay rather than determines the exact costs of the successful litigant (see Davies, supra at para. 52, Boucher, supra, at para. 26).

[8] Costs, generally, should be proportional to the issues in the action and amount awarded (Elbakhiet v. Palmer, 2014 ONCA 544, at para. 36).

[9] The sums set out above, reflect reasonable and fair amounts for the Plaintiff to pay.

[10] With respect to the motion, I fixed costs on a substantial indemnity rate, adjusted to reflect reasonable time. I awarded substantial indemnity costs as the Plaintiff’s conduct in respect of paying costs requires correction. She was given every opportunity to comply with the various costs awards, or provide a reasonable explanation as to why she could not. She failed to do either. Instead, she justified and rationalized her failure to pay. Ms. Dang made each attendance after the Court of Appeal’s dismissal of her appeal from Gray, J.’s order necessary. Every attendance after that time was pointless, and aimed at delay.

[11] With respect to the costs of the action, I awarded partial indemnity costs. The $24,104.36 comprises:

a. Fees of $15,000. I reduced fees from $17,021 to eliminate duplication and inter-office communications. While these may be payable between solicitor and client, they are not on a party and party assessment. b. HST on these fees is $1,950. c. I allowed disbursements at $4,654.36. d. All inclusive fees of $3,500 for Ms. Anderson’s previous solicitor. My reduction in the amount claimed is arbitrary since I do not have the pleasure of having been given the bill from that lawyer or any other information other than her current solicitor’s description. I assumed that the previous lawyer’s job was to bring and appear at the motion to remove the CPL and attend to its removal.

[12] I wish to say a word about proportionality in this case. The Plaintiff’s costs submissions, in the main, are that the Defendant’s claim for costs is not proportional. In fact, she says “Costs now claimed by Defendant’s counsel are completely overkill and offend the rule of proportionality…” In the context of this case, I note the irony of the submission.

[13] Proportionality should not override other considerations when determining costs. Further, determining proportionality should not be a purely retrospective inquiry based on the award. Proportionality should not be used as a sword used to undercompensate a litigant for costs legitimately incurred (Aacurate General Contracting Ltd. v. Tarasco, 2015 ONSC 45980 (S.C.J.) at para. 13 to 17). A cost award may still be reasonable and exceed the award of damage in appropriate circumstances (A & A Steelseal Waterproofing Inc. v. Kaslovski, 2010 ONSC 2652 (S.C.J.) at para. 21).

[14] In Aacurate, supra, McCarthy, J. said:

I am mindful that the principle of proportionality calls upon the court to consider the amount claimed for costs in relation to the amount recovered in the judgment, as well as the reasonable expectation of the parties. In my view, however, proportionality cannot and should not be routinely invoked to save litigants from the actual costs of proceedings in circumstances where those litigants have put forth a wholly unmeritorious defence to a legitimate claim or have caused the proceeding to become unduly prolonged or complicated. The principle should be applied thoughtfully and in a balanced fashion along with the other factors set out in rule 57.01.

[15] Further, an undue focus on proportionality ignores principles of indemnity and access to justice (see Gardiner v. MacDonald Estate, 2016 ONSC 2770 (S.C.J.) at para. 65). The trial judge must make an award that is fair and appropriate, overall.

[16] On page 6 of my 3 March 2017 endorsement, last full paragraph, I said that “Dang … lived, and must die by the litigation sword”. Ms. Dang pursued an aggressive litigation strategy. Ms. Anderson was required to respond and did so, equally aggressively. Ms. Dang’s strategy failed, miserably, but only because of her own tactical decisions, and her own failure to abide by the Court’s orders or provide a reasonable explanation why she could not abide by them, even when given the opportunity to do so. Ms. Anderson was put to needless, unnecessary work as a result of Ms. Dang’s litigation strategy. It does not lie in Ms. Dang’s mouth to complain that Ms. Anderson’s costs are disproportional when compared to the recovery of $73,000. The costs claimed (as reduced) are proportional to the defence that Ms. Dang’s litigation approach dictated.

Trimble J. Date: April 6, 2017