NEWMARKET COURT FILE NO.: CV-15-122196-00

DATE: 20180514

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KELVIN-HOI LAM

Plaintiff/Defendant by Counterclaim

– and –

HUI JUAN CHEN also known as HUI-JUAN CHEN

Defendant/Plaintiff by Counterclaim

Michael D. Magonet, for the Plaintiff/Defendant by Counterclaim

David M. Goodman, for the Defendant/Plaintiff by Counterclaim

HEARD: In Writing

REASONS FOR DECISION ON COSTS

DiTOMASO J.

BACKGROUND

[1] The Plaintiff/Defendant by Counterclaim, Kelvin-Hoi Lam (Mr. Lam), brought a motion for summary judgment against the Defendant/Plaintiff by Counterclaim, Hui Juan Chen, also known as Hui-Juan Chen (Ms. Chen). Mr. Lam was the purchaser and Ms. Chen was the vendor in respect of a residential property located at 101 Aitken Circle, Markham. Mr. Lam sought to compel the specific performance of an agreement of purchase and sale regarding this residential property, together with recoverable costs. In the alternative, he sought an award of damages by reason of Ms. Chen’s failure to close the transaction.

[2] Mr. Lam was entirely successful on his motion for summary judgment. He was awarded summary judgment for specific performance of the agreement of purchase and sale on the basis of the abatement agreement concluded between the parties, plus damages in the amount of $6,367.30 for professional costs thrown away.

[3] The parties agreed to deliver written submissions on costs. I have received those submissions and these are my reasons on costs.

ENTITLEMENT

[4] The jurisdiction of this court to deal with costs is found in s.131(1) of the Courts of Justice Act, R.S.O. 1990 C.43.

[5] In exercising its discretion under s.131 of the Courts of Justice Act to award costs, the court may also consider those factors set out in rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[6] Regarding entitlement, in this case, Mr. Lam was entirely successful.

[7] This court held that:

(a) there was a firm enforceable abatement agreement entered into between the parties;

(b) there was no credibility issue requiring a trial of this case and summary judgment was appropriate;

(c) the property was unique to Mr. Lam and an order for specific performance was warranted; and,

(d) there was no meaningful delay such that specific performance should not be granted.

[8] Given Mr. Lam’s complete success on the summary judgment motion, costs follow the event. Mr. Lam is entitled to his costs of the action and the summary judgment motion on a partial indemnity scale.

QUANTUM

Position of Mr. Lam

[9] Mr. Lam submits that he is entitled to the recovery of costs in the total sum of $51,886.75, inclusive of HST and disbursements, of which $41,470 represents Mr. Lam’s legal fees on a partial indemnity basis.

[10] It is submitted that the action and motion involved considerable work, which was necessary, reasonable and proportional. The hourly rates and time spent are detailed and justified.

Position of Ms. Chen

[11] Ms. Chen submits that certain work was not necessary. It is also submitted that the hourly rate ought to be reduced from $350 per hour to $325 per hour. It is submitted that the hours spent were very excessive and, in the end, the amount claimed by way of fees ought to be reduced by two-thirds, the disbursement for an appraisal and time associated with the appraisal ought to be discounted and the ultimate amount for costs ought to be reduced to the sum of $35,000 all inclusive.

ANALYSIS

[12] I have considered the factors set out in rule 57.01(1).

[13] I have considered the amount claimed and the amount recovered in this proceeding. I have also considered the result in favour of Mr. Lam. In this action and summary judgment motion, Mr. Lam claimed specific performance of an agreement for the purchase and sale of a residential property. In terms of the amount at issue or value of the claim over and above the sum of $6,367.30 for professional costs thrown away awarded in favour of Mr. Lam, the subject property had increased in value in the amount of $618,000 from the time of purchase.

[14] It is submitted by Mr. Lam’s counsel that Mr. Lam’s total claim and the related Judgment granted has a value in excess of $624,000 excluding costs.

[15] Notwithstanding that this action and motion involved Mr. Lam seeking the remedy of specific performance, Mr. Lam had asserted (and this court accepted) that this property was unique to Mr. Lam.

[16] In essence, a critical finding on the summary judgment motion was a determination of the dealings between Mr. Lee and Mr. Tsang resulting in the acceptance of the abatement offer. That finding was made in favour of Mr. Lam.

[17] I find a consideration of the rule 57.01(1) factors does not detract from the amounts claimed by Mr. Lam for costs.

[18] I consider the rates set forth by Mr. Lam’s counsel to be fair and reasonable. I do not agree that those rates ought to be reduced.

[19] As for the Waterman Affidavit, I find that Affidavit was necessary to address Ms. Chen’s delay argument to deny specific performance and to respond to the evidence of Mr. Tsang regarding the history of the litigation.

[20] I accept that the costs claimed by Mr. Lam do not include any time spent in attempting to traverse this action from Newmarket to Toronto. Further, any amendment to the Statement of Claim did not involve any extraordinary or unreasonable time.

[21] It is submitted on behalf of Ms. Chen that appraisal evidence was not required because Mr. Lam was seeking the remedy of specific performance. I find that the appraisal evidence was indeed necessary and reasonable, given that at all material times Ms. Chen denied that Mr. Lam was entitled to specific performance at all.

[22] I have reviewed the costs outline submitted on behalf of Mr. Lam. I note that no costs outline was submitted on behalf of Ms. Chen. Accordingly, there is no ability to compare the amount of time spent by each party in respect of this matter. To simply claim that the hours spent by Mr. Lam’s counsel as being excessive with nothing more is of no assistance to the court.

[23] To the contrary, I find that there was considerable work required in connection with this summary judgment motion. Some of the materials exchanged and filed with the court include:

(a) Motion Record of the Plaintiff with the Affidavit of Mr. Lam;

(b) Responding Motion Record of the Defendant with the Affidavit of Kai Wing Tsang;

(c) Supplementary Motion Record of the Plaintiff with the Affidavits of Mr. Lee and Ms. Waterman;

(d) Second Supplementary Motion Record of the Plaintiff with Supplementary Lam Affidavit;

(e) Third Supplementary Motion Record of the Plaintiff, including transcripts of the cross-examinations of Mr. Lam, Mr. Lee and Mr. Tsang;

(f) Facta of the parties; and,

(g) Briefs of Authorities filed by the parties.

[24] The above also references cross-examinations of Mr. Lam, Mr. Lee and Mr. Tsang. It is clear that the action and summary judgment motion involved a degree of complexity. The stakes were high in respect of this motion to both parties, as was the significant importance of the matter to each of them.

[25] The reasonable expectation of Ms. Chen as the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable.

[26] I am guided by the overarching principle of what is fair, reasonable and proportional in awarding costs: Davies v. Clarington (Municipality), 2009 ONCA, 722 at paras. 51 and 52.

[27] I consider the time spent and the hourly rate charged by Mr. Lam’s lawyers to be fair, reasonable and proportional. I am not prepared to second guess the time spent. To the contrary, in these circumstances, I do not find that the hours spent were excessive. As for the hourly rates charged, I also find that these rates are reasonable. In respect of the disbursements, I find that they are in order and do not require discount.

[28] I find that Mr. Lam is entitled to his costs as follows:

(a) Fees: $41,470.00

(b) HST: 5,391.10

(c) Disbursements, including HST: $ 5,025.65

(d) Total: $51,886.75

DISPOSITION

[29] For these reasons, Hui Juan Chen, also known as Hui-Juan Chen, shall pay to Kelvin-Hoi Lam, costs in the amount of $51.886.75, all inclusive, within the next thirty days.

DiTOMASO J.

Released: May 14, 2018