Court File and Parties

COURT FILE NO.: CV-16-555528

MOTION HEARD: 22 October 2018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anoopkrishna Jayagopal, Felicia Satkunan and Markandu Satkunan, also known as Satkunan Markandu, Plaintiffs

AND:

Ponnan Singarajah, Singarajah Aananthalojani also known as Aananthalojani Singarajah and Thampiah Siripathy, Defendants

BEFORE: Master Jolley

COUNSEL: V. Ramachandran, Counsel for the Moving Party Plaintiffs

J. Baichoo, Counsel for the Responding Party Defendants Ponnan Singarajah and Singarajah Aananthalojani

Bill Michelson, Counsel for the Responding Party Defendant Thampiah Siripathy

HEARD: 22 October 2018

REASONS FOR DECISION

[1] The plaintiffs seek an order granting them leave to amend their statement of claim to reduce the quantum of damages, remove certain causes of action and facts alleged in support and add additional particulars relating to alleged conduct of Ponnan Singarajah and Singarajah Aananthalojani (the “Singarajah defendants”).

[2] The Singarajah defendants do not object to the relief sought provided they are paid their costs thrown away as a result of the amendments.

[3] The plaintiffs also wish to discontinue their action against the defendant Siripathy. The Singarajah defendants do not oppose that relief provided they are granted leave to continue their crossclaim against Siripathy. Siripathy does not oppose the continuance of that crossclaim. An order shall go granting the plaintiffs leave to discontinue the action against Siripathy on a without costs basis and continuing the Singarajah defendants’ crossclaim against Siripathy pursuant to Rule 23.03(1.1).

[4] The Singarajah defendants seek costs thrown away of $6,800 to compensate them for the costs they will incur to amend their statement of defence and to conduct a further examination for discovery of the plaintiffs on the amendments. This sum also includes the cost of defending the causes of action which have now been abandoned and preparing an amended affidavit of documents as required under the Simplified Rules. Until shortly before the commencement of this motion, when the offer was increased to $500, the plaintiffs offered the Singarajah defendants costs thrown away in the amount of $100.

[5] It is clear that the Singarajah defendants will need to prepare an amended statement of defence. At a minimum, there is a new section in the proposed statement of claim that deals with the Singarajah defendants’ alleged failure to tender that will need to be addressed. I find the sum of $1,000 is sufficient to deal with those costs to be incurred at a partial indemnity rate of $300.

[6] The plaintiffs are prepared to undergo a further examination for discovery but take the position that they should not be responsible for those costs as this new information came from the Singarajah defendants on their earlier examination and the plaintiffs have no additional information. The Singarajah defendants are entitled to examine the plaintiffs, at the plaintiffs’ expense, to confirm on the record what information the plaintiffs will rely upon in support of these new allegations, among other things. I find the sum of $1,000 is sufficient to cover the time to prepare for and conduct that examination, as well as disbursement costs.

[7] As to the costs of defending the withdrawn allegations, there was no evidence before me as to the time taken on the examinations to cover those particular issues. Based on the limited amount of space the withdrawn allegations took up in the statement of claim, I estimate that $200 will cover any additional time that was spent on those withdrawn issues.

[8] While a new affidavit of documents will now be required to include the names and addresses of persons who might reasonably be expected to have knowledge of matters in issue in the action, similar information is required to be included in the pre-trial conference materials in any event. There are no real added costs associated with this step.

[9] For these reasons, I grant the plaintiffs leave to amend their statement of claim in the form attached as Schedule “A” to their notice of motion, upon payment to the Singarajah defendants of the sum of $2,200 as determined in paragraphs 6, 7 and 8, above.

[10] The plaintiffs seek costs of the motion in the amount of $3,118.46 on the basis that the motion should not have been opposed and that they made a reasonable offer to pay costs thrown away. The Singarajah defendants seek full indemnity costs of $9,286.26 on the basis that they made many efforts to come to resolution to avoid this motion, all of which were rejected by the plaintiffs. They even went so far to agree to leave the costs to the trial judge, as the plaintiffs proposed, but provided they could agree on a short outline of facts related to the amendment, which referenced each party’s offer as to reasonable costs thrown away. The plaintiffs did not want their offer of $100 included in those facts, even though they agreed it would have been relevant, taking the position that the judge should only be told of those amounts in oral submissions. It would have been reasonable for the plaintiffs to have accepted the Singarajah defendants’ offer and avoided the motion.

[11] The Singarajah defendants were successful in obtaining costs thrown away but not at the level sought. However, it was certainly more than the $100 offered by the plaintiffs and more than the $500 or $750 offered just before the motion. The Singarajah defendants also received costs in relation to the further examination for discovery of the plaintiffs, which the plaintiffs opposed. While the Singarajah defendants did not achieve complete success, they did try to resolve the motion. I order the plaintiffs to pay the Singarajah defendants costs of the motion in the amount of $5,000 within 30 days of this decision.

[12] Siripathy sought a modest costs award on the basis that the Singarajah defendants were not clear whether they intended to continue the present crossclaim or amend it or add new allegations if they were required to bring a third party claim. It was fairly clear from the Singarajah defendants’ materials that they were looking to continue the crossclaim as it existed. I order no costs for or against Siripathy.

Master Jolley

Date: 23 October 2018