Court File and Parties

COURT FILE NOs: CV-18-597459 DATE: 2019-12-09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: James Nguyen, Plaintiff – AND – Canadian Imperial Bank of Commerce and Bonnie Louise Palmer, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Newton Wong, for the Plaintiff Frank Cesario and Edward O’Dwyer, for the Defendants

HEARD: Costs submissions in writing

Costs Endorsement

[1] On November 5, 2019 I issued my judgment in this motion under Rule 21 of the Rules of Civil Procedure. I determined that it was a motion that needed substantive evidentiary support and therefore did not fit the parameters of Rule 21.

[2] The Defendants were the successful side and now seek their costs. Defendants’ counsel has submitted a Bill of Costs requesting $14,211.17 on a substantial indemnity scale or, alternatively, $9,516.77 on a partial indemnity scale. They argue that substantial indemnity costs are called for because the Plaintiff’s motion was ill-conceived and never should have been brought in the first place.

[3] Partial indemnity is, of course, the normal scale of costs. “An award of costs on the solicitor and client scale…is ordered only in rare and exceptional cases to mark the courts disapproval of the conduct of a party in the litigation”: D’Souza v Linton, 2013 ONSC 70, para 35. McLachlin J. (as she then was) stated in Young v Young, 1993 CanLII 34 (SCC), [1993] 4 SCR 3 that substantial indemnity costs are to be used where there is “reprehensible, scandalous, or outrageous conduct”. There is nothing of that nature in the present case.

[4] I agree with Defendants’ counsel that Plaintiff’s motion was not well conceived. It was premised on an erroneous view of the law and of the application of Rule 21. As a consequence, it was dismissed. But Plaintiff’s counsel did nothing that would attract a more punitive amount of costs. In the ordinary course, bringing a motion that is not successful because the other side has a better legal position results in costs being paid by the losing party on a partial indemnity scale. It does not elevate the applicable scale to the substantial indemnity level.

[5] The Defendants’ partial indemnity request is a reasonable one given their success in the motion. I am not inclined to second guess that success by reducing it below what their Bill of Costs shows they incurred, except for a small rounding of the requested figure.

[6] The Plaintiff shall pay the Defendants $9,500 in costs, inclusive of all fees, disbursements, and HST.

Date: December 9, 2019 Morgan J.