Court File and Parties
2020 ONSC 3839 Court File No.: CV-18-0059904-0000 Date: 2020/06/19
Ontario Superior Court of Justice
Between: Beijing Hehe Fengye Investment Co. Limited and Rong Kai Hong Plaintiffs
- and - Fasken Martineau Dumoulin LLP, Lei Huang, Fasken Business Consulting (Asia) Inc., Ka An Development Co. Limited and Chang Yu Liu Defendants
Counsel: No one appearing for the Plaintiffs Ryann Atkins for the Defendants, Ka An Development Co. Limited and Chang Yu Liu
Heard: In writing
Perell, J.
Reasons for Decision - Costs
[1] The Plaintiff, Beijing Hehe Fengye Investment Co. Limited (“BHF Investment”), is a corporation incorporated under the laws of the People's Republic of China. The Plaintiff, Rong Kai Hong, who is an Ontario resident, is a partner or joint-venturer with BHF Investment.
[2] In this action, BHF Investment and Mr. Hong sued: (a) Fasken Martineau Dumoulin LLP (“Faskens”), a Canadian law firm; (b) Fasken Martineau, Fasken Business Consulting (Asia) Inc. (“Faskens Consulting”), which is a subsidiary of the law firm, which operates in Hong Kong and in China; (c) Lei Huang, a lawyer employed by Faskens Consulting; (d) Ka An Development Co. Limited, a corporation under the laws of the Hong Kong Special Administrative Region of China and (e) Chang Yu Liu, who lives in Tianjin Province, China and who is the Managing Director of Ka An Development.
[3] Mr. Lui and Kan An Development brought a motion to have the action against them stayed or dismissed on the grounds that the court does not have jurisdiction simpliciter or alternatively on the grounds that Ontario is forum non conveniens. The motion was argued, Mr. Lui and Ka An Development were successful, and I dismissed the action as against them. [1]
[4] Mr. Lui and Ka An Development seek costs on a partial indemnity basis of $83,448.81, all inclusive.
[5] I am awarding the costs as requested. In exercising my discretion to award costs as requested, I took into account, among other things, the following factors:
a. Mr. Lui and Ka An Development were entirely successful on a motion. b. Mr. Lui and Ka An Development’s lawyer’s counsel fee on a partial indemnity basis was $74,070.75 before HST and $9,378.06 for disbursements. c. Mr. Lui and Ka An Development’s claim for costs was within the reasonable expectations of the Plaintiffs given the significance of the issues to Mr. Lui and Ka An Development and the dispositive nature of the motion. In this regard, the Plaintiffs claimed $225 million in damages and $5 million in punitive damages and the action was dismissed as against Mr. Lui and Ka An Development. d. The Plaintiffs unreasonably resisted and refused to set aside the noting of default against Ka An Development. This refusal was unreasonable against a represented by counsel foreign litigant that intended to challenge the court’s jurisdiction especially when there was a question about whether Ka An Development had been properly served. e. The Plaintiffs failed to comply with the timetable for the motion and the hearing of the motion was delayed and costs were wasted. f. The Plaintiffs did not file any responding costs submissions.
[6] 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.
[7] 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: June 19, 2020