Court File and Parties

COURT FILE NO.: 06-CV-310035PD2 MOTION HEARD: 20170403

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sally Ip, Plaintiff/Moving Party AND: Volta W.K. Tsoi, Defendant/Responding Party

BEFORE: Master P. T. Sugunasiri

COUNSEL: J. Mendelsohn, Counsel, for the Plaintiff/Moving Party T. Mathews, Counsel, for the Defendant/Responding Party

HEARD: June 15, 2017 (in writing)

Reasons for Costs Decision

[1] On May 8, 2017 I released my Amended Reasons for Decision in the main motion and dismissed the Plaintiff’s action with costs. The parties were required to deliver costs submissions to me within 30 days from that date. The request for costs relate to the Plaintiff’s motion to restore the action to the trial list. I now have those submissions.

[2] There is no reason to deviate from the normal rule that costs follow the event on a partial indemnity basis. In this case, I denied Ms. Ip’s motion to restore her action to the trial list and dismissed her action. Mr. Tsoi is entitled to reasonable costs for each. The parties have presented two issues to resolve: i) quantum and ii) payor.

Quantum

[3] Mr. Mathews provided a costs outline for the Defendant claiming partial indemnity costs, disbursements and HST of $11,233 for the motion, and costs of the action in the amount of $679.13. This is in contrast to Ms. Mendelsohn’s outline for the Plaintiff in which she requests partial indemnity costs, disbursements and HST of $2211.45, almost half of which is disbursements.

[4] While I appreciate that this relatively simple motion was complicated by cross-examinations and supplementary materials, those steps were taken by both sides. The affidavits tendered by both sides contained inaccuracies and overstatements. As such, there ought not be any cost consequence to either party for conducting cross-examinations or filing supplementary materials as result of the cross-examinations. Further, I appreciate that the significant difference in quantum reflects the different fee arrangements counsel had with the clients – Ms. Ip’s counsel was retained on contingency.

[5] Nevertheless, if one simply examines the hours spent, despite relatively parallel approaches to the motion, counsel for Mr. Tsoi seeks compensation for 52 hours of work compared to the 6.8 hours claimed by Ms.Ip’s counsel. Part of the discrepancy in the figures is that Ms. Ip’s counsel does not claim for time spent preparing the motion materials. Even after taking this into account, I find that excessive time was spent on a relatively simple motion. The bulk of the time spent by counsel for Mr. Tsoi seemed to have been in two categories. One grouping was described as ‘interviewing the client, and research’ (10.4 hours). The other grouping was described as ‘preparing the factum and book of authorities, reading transcripts and reviewing Ms. Ip’s factum and book of authorities’ (19.2 hours).

[6] Although costs are not to be determined forensically, as an assessment officer might do, having a sense of what a reasonable amount of time for a given proceeding is material and helpful. It is also contemplated in Rule 57.01 of the Rules of Civil Procedure that I consider the reasonable expectations of the opposing party. In my view, the amount Ms.Ip would reasonably expect to pay on a motion such as this is closer to 20 hours’ worth of work.

[7] In sum, I fix costs of the motion in the amount of $4,162.00 inclusive of disbursements and HST, payable within 30 days. Costs of the action are fixed at $679.13 inclusive of disbursements and HST, also payable within 30 days.

Payor

[8] Mr. Tsoi seeks costs jointly and severally against Ms. Ip and Mr.Consky as her solicitor of record. The primary basis for the claim is that Ms. Ip resides in Hong Kong and collecting the costs will be difficult. The Plaintiff also alleges carelessness and possibly negligence of Ms. Ip’s counsel. It is well established that it is only in the most extraordinary of cases that warrants costs to be awarded personally against a solicitor of record. I also agree with Mr. Tsoi’s counsel that bad faith is not necessary. Costs against a solicitor of record is codified in Rule 57.07 of the Rules of Civil Procedure.

[9] In this case however, counsel’s conduct in no way rises to the level of impropriety that warrants an order requiring him to pay Mr. Tsoi’s costs. The fact that Ms. Ip resides in Hong Kong and has no assets in Ontario is not persuasive. Our litigation process in Ontario has remedies to address impecunious or extra-jurisdictional litigants. Awarding costs against one such litigants’ counsel, is not one of them. To do so would have a chilling effect on representation available to foreign litigants who are required to litigate claims in Ontario. This is not an intended or desired effect of Rule 57.07. Counsel’s misstatements in the materials also do not rise to the level of sanction by the Court.

[10] Even if I am incorrect in my assessment and counsel’s conduct did rise to the level of negligence or dereliction of duty, this does not mean that I must order costs against Mr. Consky personally. As Justice Molloy states in Standard Life Assurance Co. v. Elliott, my discretion to award costs personally against a solicitor ought still to be exercised sparingly and only in exceptional circumstances (at para. 25). This is not one such exceptional case.

Disposition on Costs

[11] Given the foregoing, I order as follows:

[12] The Plaintiff, Sally Ip, shall pay costs to the Defendant, Volta W.K. Tsoi, in the amount of $4,162.00 inclusive of disbursements and HST, payable within 30 days;

[13] Costs of the action are fixed against Sally Ip in the amount of $679.13 inclusive of disbursements and HST, payable within 30 days.

“Master P.T. Sugunasiri” Date: June 16, 2017