Court File and Parties
COURT FILE NO.: CV-10-413343 DATE: 20180920 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: DINA’S SUPERMARKET INC. Plaintiff
AND:
651535 ONTARIO LIMITED CARRYING ON BUSINESS AS ROLLED METAL PRODUCTS AND SURINDER SINGH SARIN, JAGDEEP SARIN AND PRIYA SARIN Defendant
BEFORE: JUSTICE FAVREAU
COUNSEL: William Ribeiro, for the Plaintiff Dina’s Supermarket Inc. Surinder Singh Sarin, representing himself and the Defendant 651535 Ontario Limited carrying on business as Rolled Metal Products
HEARD: in writing
ENDORSEMENT AS TO COSTS
Introduction
[1] On April 4, 2018, I released my decision in this matter, dismissing the defendant Surinder Sarin's motion to set aside default judgment.
[2] The plaintiff seeks costs on a substantial indemnity basis in the amount of $24,270.20, and, in the alternative, on a partial indemnity basis in the amount of $9,308.91.
Principles applicable to costs
[3] In determining the costs of a proceeding, the Court is to consider the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, including the amount claimed, the complexity of the procedure, and the importance of the issues. The Court is also to consider the principles established by the Court of Appeal in Boucher v. Public Accountants Council (Ontario), (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), including that the objective of fixing costs is to set an amount that is fair and reasonable in the circumstances of the case.
[4] As held by D.M. Brown J., as he then was, in 3574423 Canada Inc. v. Baton Rouge Restaurants Inc., 2012 ONSC 296 (Sup. Ct.), at para. 11:
In reviewing a claim for costs after a trial a court need not undertake a line by line analysis of the hours claimed, nor should a court second-guess the amount claimed unless it is clearly excessive or overreaching. A trial judge must consider what is reasonable in the circumstances and, after taking into account all of the relevant factors, should award costs in a more global fashion.
[5] In Empire Life Insurance Co. v. Krystal Holdings Inc., [2009] O.J. No. 1095 (Sup. Ct.), at para. 19, Archibald J. held that "substantial indemnity costs are an exceptional award, saved for extenuating circumstances, such as situations where there has been egregious conduct, where there are outstanding offers to settle, or where a motion has been brought unreasonably".
[6] In Manufacturers Life Insurance Co. v. Crowe, 2010 ONSC 3302 (Sup. Ct.), the motion judge noted that different considerations may apply when awarding costs against self-represented litigants depending on the circumstances:
13 Fixing the costs of a motion or proceeding against a self-represented party is always a challenging task. Courts struggle to balance the effects of the lack skilled technical advice available to litigants who are not represented by lawyers against the need for the courts, as adjudicators, to be, and to appear to be, indifferent between the interests of both parties to a lawsuit, represented or not.
15 Given the lack of homogeneity amongst self-represented litigants, it is necessary for the courts, in each case involving a self-represented party, to pay close attention to the factors enumerated in Rule 57.01(1) of the Rules of Civil Procedure, particularly those dealing with the reasonable expectations of the unsuccessful party, the conduct of the party, and whether any steps were improper, vexatious or unnecessary: Rule 57.01(1)(0.b), (e) and (f). Fixing costs in such circumstances will be an individualized process, focusing on the characteristics and conduct of the particular self-represented litigant, not measured against some abstract notion of the "typical self-represented litigant".
Positions of the parties and analysis
[7] The plaintiff takes the position that this is an appropriate case for substantial indemnity costs, arguing that Mr. Sarin was untruthful in some parts of his affidavit and submissions on the motion and that he has disregarded previous costs orders. As part of the costs sought on a substantial indemnity basis, the plaintiff seeks payment of amounts incurred due to the aborted sale of a property, which turned out to be in Mr. Sarin's wife's name rather than his name.
[8] Mr. Sarin does not dispute that he should pay costs, but he takes the position that costs should not be awarded on a substantial indemnity basis and he also argues that the amount sought on a partial indemnity basis is excessive and unsupported by proper information about the time incurred by the plaintiff's counsel for the motion. He argues that an award between $4000 and $5000 would be appropriate.
[9] I agree that this is not an appropriate case for substantial indemnity costs. While Mr. Sarin was assisted by his daughter who is a lawyer, he is nevertheless self-represented in these proceedings. Mr. Sarin's conduct on the motion was not so egregious or outrageous that it warrants an award of substantial indemnity costs.
[10] In addition, I do not agree that Mr. Sarin should be responsible for payment of the plaintiff's expenses in seeking to enforce the sale of the house in his wife's name. There is ongoing litigation involving Mr. Sarin's wife dealing with the circumstances under which the attempted sale occurred, and, in my view, it would be inappropriate for me to award amounts attributable to that issue in the context of Mr. Sarin's motion to set aside default judgment.
[11] Having said that, given the complex history of this matter and the work required to place a comprehensive record before the court on the plaintiff's behalf, I do find the amount sought by the plaintiff on a partial indemnity basis reasonable. Therefore, considering the circumstances of the case, in my view, $9,308.91 in costs is fair, proportionate and reasonable.
Conclusion
[12] I therefore order Mr. Sarin to pay costs of $9,308.91 plus disbursements in the amount of $398.86 plus HST to be paid within 30 days of today's date.