Court File and Parties

COURT FILE NO.: CV-16-561936 DATE: 2020-06-18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HUAN VU, Plaintiff AND: ATTORNEY GENERAL OF CANADA, Defendant

BEFORE: Schabas J.

COUNSEL: Subodh Bharati and Cory Wanless, for the Plaintiff Kristina Dragaitis and Aleksandra Lipska, for the Defendant

HEARD: March 12, 2020

COSTS ENDORSEMENT

[1] On April 21, 2020, I released Reasons dismissing a motion for summary judgment brought by the defendant: Vu v. Attorney General of Canada, 2020 ONSC 2447. This followed a previous motion to strike out the action by the defendants, which was heard by Schreck J. in June 2018. Although some claims were struck, Schreck J. permitted a number of claims to proceed subject to the plaintiff amending his claim to address discoverability. Following the amendments, the defendant moved for summary judgment on the grounds that the action was out of time and on the merits. I found for the plaintiff on both issues.

[2] The plaintiff seeks costs on a substantial indemnity basis of $81,300.58, or alternatively $54,582.39 on a partial indemnity basis.

[3] The plaintiff’s claim for costs on a substantial indemnity basis relates to an allegation of misconduct which I am not able to determine based on the record before me. In any event, I did not have regard to it in my Reasons and it had no impact on my decision. In the context of this hard-fought litigation, an isolated and perhaps unfounded comment does not rise to the level of “reprehensible conduct” that would merit an award on a substantial indemnity basis.

[4] I do not question the time spent by counsel on this matter. It was complex and raised novel and important issues. The evidence was necessarily extensive and challenging to obtain. It was not made easier by the presence of the plaintiff in Vietnam. While the defendant asserts the costs are excessive, the comparison to the costs before Schreck J. is not helpful, as a motion for summary judgment is quite different from a motion to strike.

[5] It has been repeatedly stated that the overall objective of fixing costs is to arrive at an amount that is fair and reasonable, rather than to reflect the amount of actual costs incurred by the successful litigant: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 16. The court must also have regard to the factors set out in Rule 57.01(1) of the Rules of Civil Procedure in exercising its discretion in fixing an amount that is fair and reasonable for the unsuccessful party to pay, including having regard to the expectations of that party.

[6] In my view, having regard to the considerations in Rule 57, and in particular the complexity and importance of the motion, as well as concerns about proportionality and access to justice, the costs sought by the plaintiff on a partial indemnity basis are reasonable and appropriate. The defendant shall pay costs of the motion to the plaintiff in the amount of $54,582.39, inclusive of disbursements and HST.

Schabas J. Date: 2020-06-18