COURT FILE NO.: CV-15-0541
DATE: 2019-04-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ORIENTAL GARDEN CHINESE & VIETNAMESE RESTAURANT INC. and HUONG CAO QUE TANG also known as QUE TANG
John G. Illingworth, for the Plaintiffs
Plaintiffs
- and -
PHUC VAN NGUYEN
Michael Cupello, for the Defendant
Defendant
HEARD: Via Written Submissions
Madam Justice T. J. Nieckarz
Decision On Costs
Introduction:
[1] This is a decision on the costs of a motion brought by the Plaintiffs pursuant to Rule 45.02 of the Rules of Civil Procedure for an order requiring that the surplus sale proceeds arising from the sale by a receiver of the Defendant’s property be paid into court pending a determination of the Plaintiffs’ claims as against the Defendant in this proceeding. The Plaintiffs had also amended their notice of motion to claim alternative relief for an interlocutory injunction restraining the Defendant from dealing with the proceeds pending further order of the court.
[2] For reasons delivered in Oriental Garden Chinese & Vietnamese Restaurant Inc. et al. v. Nguyen, 2018 ONSC 7538, I granted the relief claimed by the Plaintiffs. It is undisputed that the Plaintiffs were wholly successful on the motion. The Plaintiffs now claim their costs of the motions, fixed in the amount of $20,000 and payable from the funds paid into court.
[3] The Defendant takes the position that the costs claimed by the Plaintiffs are excessive and not proportionate. The Defendant’s position is that costs should be fixed in the range of $3,000 – $6,000 and should not be paid from the monies paid into court given that the Plaintiffs’ claim to the money has yet to be determined.
The Law:
[4] An award of costs is in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act, which provides:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[5] The discretion of the court is to be exercised in light of the facts and circumstances of the case in relation to the factors provided for in Rule 57.01(1). In addition to the outcome and any offers to settle that were made, the rule provides for consideration of the following factors:
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.
[6] A costs award must be fair and reasonable. It should also reflect the reasonable expectations of the parties and seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at paras. 37-38; Andersen v. St. Jude Medical Inc., 2006 CanLII 85158 (ONSC Div. Court) at para. 22.
Analysis:
[7] Taking into consideration the factors outlined in Rule 57.01(1), I agree with the submission of the Defendant that the costs sought by the Plaintiffs on this motion are excessive. I do not doubt that the time was properly spent by counsel for the Plaintiffs in the pursuit of the Plaintiffs’ interests in this matter, and the quality of the materials submitted by him, along with his submissions at the motion were reflective of the time put into the matter. The amount claimed, however, cannot reflect the reasonable expectation of the unsuccessful party in a motion of this nature that took just under a half day to argue.
[8] Having said this, I cannot accept the submission of the Defendant that the proper amount to be awarded is in the range of $3,000 – $6,000. This does not accurately reflect the costs of modern day litigation for a motion that involved senior counsel (on both sides), had voluminous materials, a factum, book of authorities, and which necessitated cross-examinations (albeit brief examinations). While the Defendant correctly asserts that this was a matter of great importance to him that he had a right to vigorously defend, access to justice must be balanced with the indemnification principle to ensure that the Plaintiffs as the successful litigants are properly indemnified for their costs incurred.
[9] Taking into consideration the factors outlined in Rule 57.01(1) in the context of this particular case, it would be fair and reasonable to award costs of $12,500, inclusive of disbursements and H.S.T., to the Plaintiffs to be paid by the Defendant forthwith. I am not inclined to order costs payable from the funds paid into court as there are other parties (most notably the former spouse of the Defendant) who may also have a claim against those funds and therefore it is not yet clear that the funds fully belong to the Defendant.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: April 16, 2019
COURT FILE NO.: CV-15-0541
DATE: 2019-04-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ORIENTAL GARDEN CHINESE & VIETNAMESE RESTAURANT INC. and HUONG CAO QUE TANG also known as QUE TANG
Plaintiffs
- and -
PHUC VAN NGUYEN
Defendant
DECISION ON COSTS
Nieckarz J.
Released: April 16, 2019
/sab