COURT FILE NO.: CV-16-566157 DATE: 2020/03/20
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ADARSH KALIA by her Litigation Guardian, THE PUBLIC GUARDIAN AND TRUSTEE Plaintiff
- and - RAKHI KALIA, ANN M. WOODRUFF and COPELAND MCKENNA Defendants
Joga S. Chahal for the Plaintiff Allan Morrison and Vibhu Sharma for the Defendant Rakhi Kalia
HEARD : In writing
PERELL, J.
REASONS FOR DECISION - Costs
[1] Rakhi Kalia, brought a motion to have the action brought by Adarsh Kalia, who is Rakhi’s mother, dismissed on the grounds that Mrs. Kalia’s lawyer of record did not have authority to commence the action. In the alternative, Rakhi sought an order to have Mrs. Kalia’s lawyer of record disqualified for conflict of interest.
[2] Mrs. Kalia brought a cross-motion for a timetable and for case management given that this three-year old action has not progressed beyond the closing of pleadings.
[3] Save for granting Rakhi’s unopposed request for leave to amend her Statement of Defence, I dismissed her motion. I granted Mrs. Kalia’s cross-motion and I ordered the parties to attend before me for a case conference to establish a timetable for a summary judgment motion or for a trial. [1]
[4] Sadly, prior to the case conference, Mrs. Kalia passed away. The parties attended the case conference. However, pending a transmission of interest and the regularization of this unfortunate family dispute and now estate dispute, a timetable could not be established.
[5] What remains outstanding for me is the matter of the costs of the motions.
[6] The late Mrs. Kalia seeks costs on a substantial indemnity scale of $18,461.73 , all inclusive of counsel fee of $17,195.77, HST, and disbursements of $1,265.60.
[7] The late Mrs. Kalia’s claim for substantial indemnity costs is based on what is alleged to be Rakhi’s delaying tactics that have led to: (a) an action commenced in December 2016 not proceeding beyond the discovery stage; and (b) motions scheduled for February 2019 to be heard by a master not being heard until January 31, 2020 by a judge, an almost one year delay.
[8] Counsel for the late Mrs. Kalia submits that Rakhi’s delaying tactics included her decision to advance a limitations period argument that she later did not pursue. Counsel submits that Rakhi’s tactics led to: two case conferences before a master; an attendance at Civil Practice to change the motions to be heard by a judge and to fix a timetable; contraventions of the time table by Rakhi; adjournments of the motion; and the stalling of the action.
[9] Subject to the costs consequences provisions of the Offer to Settle rule, only in exceptional cases are costs awarded on a substantial indemnity scale [2] or on a full indemnity scale. [3] Costs on a substantial indemnity scale or full indemnity scale are reserved for rare and exceptional cases, where the conduct of the party against whom costs is ordered is reprehensible or where there are other special circumstances that justify costs on the higher scale. [4]
[10] While, it is true that Rakhi’s unsuccessful motion delayed the progress of the action and caused the late Ms. Kalia to incur additional and wasted legal expenses, her estate will be indemnified for these legal expenses on a partial indemnity basis and there is no reason to make a punitive costs award.
[11] The appropriate scale of costs in the immediate case is the normal partial indemnity scale. Based on the Costs Outline, the costs award on a partial indemnity scale, all inclusive, would be approximately $13,500. In comparison, Rakhi revealed that her partial indemnity costs were $11,116.47, all inclusive.
[12] In any event, Rakhi requests that the Court award no costs or nominal costs because she has trying to ascertain the truth of the matter and at all times wanted her mother to return to the home that is the subject of this litigation, because she was separated from her late mother for three years and suffered emotional stress, and because she is unemployed and is heavily in debt and her husband has been paying the mortgage and condo fees on the subject property for over a decade.
[13] She also reargued the merits of her motion and repeated many of the arguments made on the motions.
[14] I am not persuaded by any of these arguments. The late Mrs. Kalia was successful in resisting Rakhi’s motion and successful in her own right on her cross-motion. Costs should be awarded in the normal course on a partial indemnity basis.
[15] Having reviewed the late Mrs. Kalia’s Bill of costs, I award her estate $13,500.00 , all inclusive.
[16] In the circumstances of the Covid-19 emergency, these Reasons for Decision are deemed to be an Order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order.
[17] The parties may submit formal orders for signing and entry once the court re-opens; however, these Reasons for Decision are an effective and binding Order from the time of release.
Perell, J.
Released: March 20, 2020
COURT FILE NO.: CV-16-566157 DATE: 2020/03/20
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ADARSH KALIA by her Litigation Guardian, THE PUBLIC GUARDIAN AND TRUSTEE Plaintiff
- and - RAKHI KALIA, ANN M. WOODRUFF and COPELAND MCKENNA Defendants
REASONS FOR DECISION – Costs
PERELL J.
Released: March 20, 2020
Footnotes
[1] Kalia v. Kalia, 2020 ONSC 935 . [2] United States of America v. Yemec , (2007) , 85 O.R. (3d) 751 (Div. Ct.); Foulis v. Robinson (1978) , 21 O.R. (2d) 769 (C.A.). [3] Davies v. Clarington (Municipality) (2009), 2009 ONCA 722 , 100 O.R. (3d) 66 (C.A.). [4] Whitfield v. Whitfield , 2016 ONCA 720 at para. 23 ; St. Elizabeth Home Society v. Hamilton (City) , 2010 ONCA 280 , supp. reasons 2010 ONCA 479 ; Davies v. Clarington (Municipality) (2009), 2009 ONCA 722 , 100 O.R. (3d) 66 (C.A.); McBride Metal Fabricating Corp. v. H & W Sales Co. (2002) , 59 O.R. (3d) 97 at para. 38 (C.A.).