COURT FILE NO.: CV-20-00646635

DATE: 2020-10-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DONALD DESROCHERS, Applicant

AND:

WORLD FINANCIAL SOLUTIONS INC., SANEH BHARDWAJ and SUNIL BHARDWAJ, Respondents

BEFORE: Paul B. Schabas J.

COUNSEL: Paul Robson, for the Applicant

Monica Peters, for the Respondents

HEARD: September 14, 2020

COSTS ENDORSEMENT

[1] I released Reasons for Judgment in this matter on September 15, 2020: Desrochers v. World Financial Solutions Inc., 2020 ONSC 5546. On September 22, 2020, I issued a short endorsement following the receipt of correspondence from counsel: Desrochers v. World Financial Solutions Inc., 2020 ONSC 5701.

[2] The Respondents now seek costs on a full indemnity basis in the amount of $26,373.07.

[3] In the circumstances of this case, I find that costs should be ordered on a substantial indemnity basis in the amount of $20,000.00.

[4] The Applicant did not dispute that principal and interest was owing on the mortgage, which had been in default since October 2018. However, he only paid that amount after my Reasons were released. As I found, his application amounted to an attempt to obtain a Mareva injunction, which was not necessary and unjustified.

[5] Given his admission that he owed the principal and interest, the actual amount in dispute at the time were additional fees contained in the Notice of Sale, which I also found were owing and have now been paid.

[6] As the Respondent had offered throughout, had the Applicant paid the principal, interest and disputed fees in the Notice of Sale, this urgent application could have been avoided. This supports an elevated award of costs.

[7] The Applicant made allegations of fraud against the Respondents which were unsubstantiated. This also supports an elevated award of costs.

[8] The conduct of the Applicant in not attending cross-examination is also an aggravating factor supporting an elevated award of costs.

[9] Under the standard terms of the Mortgage, the Respondent mortgagee is entitled to charge its legal fees between solicitor and client.

[10] However, this does not take precedence over my discretion, pursuant to the Courts of Justice Act, s.131 (1), to determine the issue of costs on this application. In doing so, my overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Counsel for Ontario, 2004 14579 (ON CA), 2004 14579 (Ont. C.A.).

[11] I have considered the factors in Rule 57.01, as well as the principle of proportionality and that the court should seek to balance the indemnity principle with the fundamental objective of access to justice.

[12] In my view, the Applicant was unsuccessful, and there are factors that support an award of costs on a substantial indemnity basis which, it must be borne in mind, is an exceptional situation. However, having regard to the principal of proportionality and access to justice, I do not find it appropriate to award costs on a full indemnity basis.

[13] In my view, an appropriate award is $20,000.00, inclusive of disbursements and HST, and I fix costs in that amount.

Paul B. Schabas, J.

Date: October 27, 2020