HAMILTON COURT FILE NO.: 19-68877
DATE: 2019/10/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jodie Calvert Wang Professional Corporation and Jodie Wang
Timothy J. McGurrin and Jack Masterman, for the Respondents
Claimants
(Respondents)
- and -
Baldeep Takhar, DJ11 Holdings Inc., P and A Holdings Inc., Dr. Takhar Inc., AZP Properties Inc., Dr. Takhar Medicine Professional Corporation and Jane Doe
Peter Wardle and Evan Rankin, for the Appellants
Respondents (Appellants)
The Honourable Justice D. L. Edwards
COSTS ENDORSEMENT
[1] On September 19, 2019 I heard an appeal from Arbitrator Kent’s decision of June 27, 2018 and on September 25, 2019 I released my decision. I determined that the arbitrator’s decision was insufficient with respect to one issue. I remitted that issue back to the arbitrator.
[2] The appellants seek a cost order in the amount of $24,322.76.
[3] The respondents submit that success was divided on the appeal and that each party ought to bear their own costs. Alternatively, they submit that a cost award in the amount of $3,500 would be appropriate.
Analysis
[4] In exercising my discretion under Section 131 of the Courts of Justice Act, Rule 57.01 of the Rules of Civil Procedure sets out the factors that I should consider in fixing costs.
[5] Rule 57.01 states:
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)
[6] The first issue for me to consider is the result of the proceeding and whether there was a successful party or was there mixed success.
[7] The relief sought by the appellants was very broad and included a request that the arbitration award be set aside in its entirety. At the hearing the appellants abandoned that broad relief and sought only to have the matter remitted to a new arbitrator for a reconsideration of the parties’ entitlement to the amount of $568,560.
[8] The respondents took the position that the arbitrator’s reasons were adequate, but in the alternative asserted that returning the matter to the Arbitrator Kent was the most efficient manner for the matter to be resolved.
[9] I found that the reasons were inadequate on the single issue of the award of $568,560 and remitted that issue back to Arbitrator Kent.
[10] The appellants were successful in obtaining a finding that the reasons were inadequate on that one issue, whereas the respondents were successful in having the matter returned to Arbitrator Kent for a determination of that issue.
[11] Clearly, success was divided.
[12] In those circumstances, I find that it is appropriate to make no order as to costs.
D. L. Edwards J.
Released: October 28, 2019
HAMILTON COURT FILE NO.: 19-68877
DATE: 2019/10/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jodie Calvert Wang Professional Corporation and Jodie Wang
Claimants
(Respondents)
- and –
Baldeep Takhar, DJ11 Holdings Inc.,
P and A Holdings Inc., Dr. Takhar Inc.,
AZP Properties Inc., Dr. Takhar Medicine Professional Corporation and Jane Doe
Respondents
(Appellants)
COSTS ENDORSEMENT
D. L. Edwards J.
Released: October 28, 2019