CITATION: El-Hawary v. Tam, 2017 ONSC 3549
COURT FILE NO.: 15-65422
DATE: 2017/06/08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NAHED EL-HAWARY
Plaintiff/Moving Party
– and –
STANLEY TAM aka STANLEY BOR TAM, 1202827 ONTARIO INC., RTM RESOURCES INC. and 1041376 ONTARIO INC.
Defendants/Respondents
Manou Ranaivoson, for the Plaintiff/Moving Party
Martin Diegel, for the Defendants/Respondents
HEARD: In writing
COSTS ENDORSEMENT
RATUSHNY J.
[1] Pursuant to Reasons for Judgment released April 28, 2017, the plaintiff was successful in obtaining summary judgment and costs against all of the defendants pursuant to the oppression remedy available under the Business Corporations Act. The plaintiff was unsuccessful in her other three claims for declaratory relief.
[2] Written costs submissions have been received from all parties.
[3] The plaintiff claims a total costs amount of $22,352.93 (inclusive of disbursements and HST) on a partial indemnity basis prior to an Offer to Settle dated October 16, 2015 and on a substantial indemnity basis from the date of the Offer. The plaintiff’s claim is inclusive of costs thrown away for an adjournment of the summary judgment motion first set for November 8, 2016 due to the absence of Mr. Tam from the country during the timetable of events set by the Master in advance of that first motion date.
[4] The defendants submit a costs amount of $7,500.00, inclusive of disbursements and HST, is more appropriate, taking into account:
the unsuccessful claims of fraud;
that the Offer to Settle was unclear in that it did not contain a fixed costs component;
that the plaintiff’s costs submissions contained no time dockets;
that in respect of costs thrown away, it was unnecessary to obtain a Certificate of Non-Attendance for the initial dates set for cross-examination of Mr. Tam as it was made clear he was not available in accordance with the Master’s timetable;
that there are no receipts for the claimed disbursements and approximately $450 of disbursements for court filing fees should not have been claimed as they are not in the Tariff under the Rule 57.01 and should be considered as part of overhead; and
that counsel’s hourly billing rate of $200 in 2017 is too high for a 2014 call.
[5] I deal with each of these objections in turn.
[6] I agree there should be some modulating effect on the costs award arising out of the plaintiff’s unsuccessful fraud claims, however, that effect is minimal given that only declaratory relief was available and not awarded, in contrast to her successful claim for full judgment against all the defendants. In addition, the required review of financial documents was a similar process for all claims so that it was not a superfluous process in respect of the failed claims.
[7] The Offer to Settle was concrete enough for the defendants to be able to assess their position as it indicates its costs component could be negotiated or assessed. I conclude the plaintiff is entitled to the costs consequences under Rule 49.10(1).
[8] The plaintiff’s costs submissions need not contain time dockets or receipts for disbursements as the attached Lawyer’s Certificate serves this purpose by attesting to the correctness of the hours claimed to have been spent and the disbursements incurred. The time spent at each stage of the proceedings as detailed in the plaintiff’s Bill of Costs does not appear to me to be excessive.
[9] I understand the motion material filing fees to be simply another disbursement able to be claimed, as for other disbursements.
[10] The hourly billing rate for the plaintiff’s counsel is not excessive or unreasonable according to the year of call to the bar, ranging as it does between actual rates of $325 and $200.
[11] As for the costs thrown away claimed by the plaintiff in the amount of $2,021.75 on a substantial indemnity basis (inclusive of HST and disbursements), in my view these are properly allocated as substantial indemnity costs due according to the third category set out in Caldwell v. Caldwell, 2015 ONSC 7715 (SCJ), at para. 10. There, the third category was explained as where no fault is assigned to the party requesting the adjournment and further explained as being one that “is really one of responsibility for the adjournment as opposed to fault or lack of fault”. While I think it fair to presume, as the plaintiff has said, that Mr. Tam knew of the timetable and agreed to it, I have no evidence allowing me to assign fault for the need for the adjournment. This does not, however, change the consequence of there being a costs award on a substantial indemnity basis because of Mr. Tam being responsible for the adjournment.
[12] I agree with the plaintiff’s costs submissions on the Rule 57.01 factors applicable to this case. I highlight in particular as meriting increased weight, that “the proceedings were fairly complicated since they involved numerous causes of action, a lot of financial documents and substantial case law” and that “the issues for the plaintiff were of great importance because she initiated her original lawsuit in 2012, took diligent steps to collect on her judgment, and was unable to recover her judgment in full”.
[13] I award costs, therefore, to the plaintiff on a partial indemnity basis prior to the date of the Offer, and on a substantial indemnity basis from the date of the Offer including for costs thrown away. I reduce, albeit nominally, the amount requested by the plaintiff to reflect her lack of success on her fraud claims. I fix costs in the amount of $21,000.00 inclusive of disbursements and HST, payable within 30 days.
Justice L. Ratushny
Released: June 08, 2017
CITATION: El-Hawary v. Tam, 2017 ONSC 3549
COURT FILE NO.: 15-65422
DATE: 2017/06/08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NAHED EL-HAWARY
Plaintiff/Moving Party
– and –
STANLEY TAM aka STANLEY BOR TAM, 1202827 ONTARIO INC., RTM RESOURCES INC. and 1041376 ONTARIO INC.
Defendants/Respondents
COSTS ENDORSEMENT
Ratushny J.
Released: June 08, 2017