Court File and Parties

Oshawa Court File No.: CV-10-66888 Date: 20180803 Superior Court of Justice - Ontario

Re: Homelife Winners Realty Inc., Plaintiff And: 2181550 Ontario Inc., Palwinder Singh Nijjar, Palbir Nijjar, Armeet Nijjar, Defendants

Before: The Honourable Mr. Justice C.F. de Sa

Counsel: None one appearing for the Plaintiff Osborne Barnwell, Counsel for the Defendant, 2181550 Ontario Inc.

Heard: July 13, 2018

Endorsement

[1] The moving party, 2181550 Ontario Inc. (2181550) has brought a motion seeking all costs incurred in the enforcement of previous orders against Palwinder Nijjar (Mr. Nijjar).

[2] Homelife Winners Realty Inc. brought an action against 2181550 Ontario Inc. and Mr. Nijjar. By Order dated November 15, 2013, the court awarded judgment in the amount of $59,920 in damages and $22,600 in costs against 2181550 Ontario Inc. and Palwinder Nijjar in the action.

[3] 2181550 Ontario Inc. had cross-claimed against Mr. Nijjar for the indemnification. The Court also issued an Order dated November 12, 2013, in which the Court accepted the Minutes of Settlement executed by Palwinder Nijjar wherein Mr. Nijjar was to indemnify 2181550 for the total judgment plus costs of $12,000.

[4] Mr. Nijjar refused to pay the amounts owing under the Court Order of November 12, 2013. Since then, 2181550 has been vigorously pursuing Mr. Nijjar to pay the judgment. Mr. Nijjar initially moved to Vancouver, and has now moved to California. Thus far, the fees paid to the Vancouver lawyer, those fees paid to the California lawyer, and the time spent on the matter by counsel here in Ontario since 2013 have been significant. The California lawyer’s fees thus far as of June 2018 are $71,742 (USD) of which the moving party has paid $29,558. The costs of Canadian counsel has been $59,279.80. The total fees thus far (excluding that which are unpaid) are $100,678.

[5] The maximum amount of costs for enforcement of judgment in California is $2,000. However, counsel in California has indicated that an order from the Court of original jurisdiction would assist the Court in California to grant the cost of the entire enforcement. As a consequence, a motion for such an order has been brought.

[6] The question raised is whether the costs sought meet the requirement of proportionality. Is the amount sought reasonable having regard to the amount of the original judgment?

[7] Costs awards under section 131 of the Courts of Justice Act related to a proceeding are highly discretionary. Rule 60.19(1) of the Rules of Civil Procedure also provides for certain specified costs associated with the enforcement of judgments.

[8] As the cases make clear, assessing costs is not simply a matter of arithmetic, where dockets are tabulated. The overarching principle is that the court’s assessment should be fair and reasonable in light of all the circumstances.

[9] Section 57.01 of the Rules of Civil Procedure provides as follows:

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1) ; O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.

[10] I am not prepared to order costs related to the U.S. proceeding. In my view, that is within the jurisdiction of the foreign court to make such an assessment. Moreover, the costs of enforcement here should be proportionate to the amount of the judgment itself and reasonable in the circumstances. I agree that the moving party (2181550 Ontario Inc.) is entitled to reasonable indemnification for the costs it has incurred. However, I am not prepared to make an open-ended order regarding current and future costs related to enforcement.

[11] On the basis of the materials filed, I am prepared to order a maximum of $35,000 CDN for costs incurred in Canada. This will not preclude 2181550 Ontario Inc. from seeking any costs that it is entitled to in the California enforcement proceeding.

Justice C.F. de Sa Date: August 3, 2018