NEWMARKET COURT FILE NO.: CV-16-126848-00
DATE: 20180514
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHAOGUANG ZHENG
Plaintiff
– and –
YANYU ZHUO, WU ZHENG, LINLONG ZHENG and LING FENG ZHENG
Defendants
Jerome H. Stanleigh, counsel for the Plaintiff
Ian McKellar and Tim Gleason, as agents for Yan Wang, counsel for the Defendants
HEARD: In Writing
REASONS FOR DECISION ON COSTS
DiTOMASO J.
BACKGROUND
[1] The defendants brought a motion for an order staying this action and setting aside service of the Statement of Claim on the defendants on the basis that the Ontario Superior of Justice lacked jurisdiction or, in the alternative, that Ontario was not a convenient forum for the hearing of this proceeding.
[2] For reasons, dated March 28, 2018, at paragraph 54, I held the following:
For these reasons, I find that the Chinese-resident defendants have not attorned to the jurisdiction of Ontario courts. Further, I have found that the Ontario courts decline to assume jurisdiction on the grounds that there is no real and substantial connection between the parties, the legal situation or the subject matter of the litigation and the forum. Accordingly, there shall be an order staying this action and setting aside service of the statement of claim on the defendants.
[3] The parties agreed that costs would be determined by way of written submissions. I have received those submissions and these are my reasons on costs.
ANALYSIS
Entitlement
[4] Pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, C.43, the award of costs is discretionary.
[5] When exercising discretion in respect of costs, the court may refer to rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[6] The defendants were entirely successful on this motion. Accordingly, costs follow the event and they are entitled to their costs on a partial indemnity scale.
Quantum
[7] The defendants seek their partial indemnity costs in the amount of $16,895.58. They have set out their costs in a costs outline, based on a partial indemnity scale, as follows: Fees: $12,993.87; estimated lawyers fee for appearance (for TG) $771.23; estimate lawyers fee for appearance (for IM) $486.47; disbursements, $2,644.01 for a total of $16,895.58.
[8] The costs claimed by the successful defendants are largely unchallenged by the plaintiff, Mr. Zheng.
[9] Mr. Zheng only submits a proposal to settle costs at a particular amount and makes no submissions over and above that. I find the proposal to settle costs to be of no effect in these circumstances.
[10] I find that the costs claimed by the defendants are unchallenged.
[11] It falls to me to determine whether the partial indemnity costs claimed are fair, reasonable and proportional.
[12] I am guided by the overarching principles of what is fair, reasonable and proportional in fixing costs. See: Davies v. Clarington (Municipality), 2009 ONCA 722 at paras 51 and 52.
[13] I find that the hourly rates and the time spent in respect of this matter are fair, reasonable and proportional. I have considered the factors set out in rule 57.01 of the Rules of Civil Procedure in further coming to the conclusion that the amounts claimed are reasonable. The estimated lawyers’ fees for appearance and the disbursements are also fair, reasonable and proportional.
[14] Accordingly, I fix costs in the amount of $16,895.58, all inclusive of fees, disbursements and HST.
DISPOSITION
[15] Accordingly, it is hereby ordered that the plaintiff, Chaoguang Zheng, shall pay to the defendants, Yanyu Zhou, Wu Zheng, Linlong Zheng and Ling Feng Zheng, the sum of $16,895.58, all inclusive, for costs within the next thirty days.
DiTomaso J.
Released: May 14, 2018