Court File and Parties

COURT FILE NO.: CV-17-586973

DATE: 20180604

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NEW DERMAMED INC., Plaintiff

AND:

DANNA SULAIMAN and GOOGLE INC., Defendants

BEFORE: Cavanagh J.

COUNSEL: Ruzbeh Hosseini and N. Joan Kasozi for the Plaintiff

J. Sebastian Winny, C.S., for the Defendant, Danna Sulaiman

HEARD: By written submissions

COSTS ENDORSEMENT

[1] The defendant Danna Sulaiman successfully moved pursuant to s. 137.1 of the Courts of Justice Act for an order dismissing this action. I concluded that the action arises from expressions made by Ms. Sulaiman that relate to a matter of public interest. I was satisfied that there are grounds to believe that the action has substantial merit, but I was not satisfied that there are grounds to believe that Ms. Sulaiman has no valid defence in the action. Given these conclusions, section 137.1(3) of the Courts of Justice Act required me to dismiss the action.

[2] Section 137.1(7) of the Courts of Justice Act provides that if a judge dismisses an action under this section, the moving party is entitled to costs on the motion and in the action on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.

[3] Ms. Sulaiman requests costs on a full indemnity basis fixed at $21,500. This is calculated based on 18.1 hours spent by counsel at an hourly rate of $600 and 1.0 hour spent by a law clerk at an hourly rate of $200. Counsel for Ms. Sulaiman was called to the bar in 1997. In addition, Ms. Sulaiman claims a counsel fee of $7,200 on a full indemnity basis for preparation for and attendance at the hearing of the motion. She also claims HST of $2,373.80 and disbursements of $633.11.

[4] In response, counsel for New Dermamed submits that (i) there should be no order as to costs or, alternatively (ii) the amount of costs claimed by Ms. Sulaiman is excessive and, if costs are awarded on a full indemnity basis, they should be fixed at $13,936.97 which is the amount in the Costs Outline of New Dermamed calculated on the basis of actual rates of counsel. The fees calculated in the Costs Outline of New Dermamed are based upon time spent by three lawyers (with hourly rates of $525, $310 and $225). The total number of hours spent (excluding time for preparation for and attendance at the motion) is shown to be 30.1 hours, with most of the time spent by counsel charging hourly rates of $310 and $225.

[5] I am not satisfied that there are considerations that arise on this case that warrant a departure from the presumptive entitlement to costs on a full indemnity basis that is provided for in s. 137.1(7) of the Courts of Justice Act.

[6] New Dermamed sued under the simplified rules and claimed damages of $500,000. There was no statement of defence delivered. The issues in the action were not complex. Ms. Sulaiman delivered a short affidavit and a short factum in support of her motion. There were no cross-examinations.

[7] Given the amount claimed, I am satisfied that it was not unreasonable for the file to be staffed by a lawyer with the experience of counsel for Ms. Sulaiman.

[8] I regard the time claimed for steps taken in the action as described in the Costs Outline of Ms. Sulaiman to be within a range of reasonableness for this action. The number of hours spent (18.1 hours) was considerably less than the combined amount of time spent by the lawyers for New Dermamed (30.1 hours). The difference in the fee calculated in the two costs outlines is due to the higher hourly rate of counsel for by Ms. Sulaiman than the rates of the counsel for New Dermamed.

[9] I regard the counsel fee on a full indemnity basis for preparation for and attendance at the hearing of the motion to be too high for this motion. I allow $6,000.

[10] I fix costs of the motion and the action in the amount of $20,000 inclusive of fees, disbursement and HST to be paid by New Dermamed to Ms. Sulaiman within 30 days.

Cavanagh J.

Date: June 4, 2018