Court File and Parties

COURT FILE NO.: CV-18-611091 (Toronto)

MOTION HEARD: 2019 10 08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Wen Wang and Wei Li v. Mattamy Corporation, Mattamy Homes Limited and Mattamy (Preserve) Limited

BEFORE: MASTER R. A. MUIR

COUNSEL: Wen Wang and Wei Li in person Michael A. Currie for the defendants

SUPPLEMENTARY REASONS FOR DECISION - COSTS

[1] On October 8, 2019, I heard a motion brought by the defendants. They requested an order setting aside their noting in default and staying this action in favour of an arbitration proceeding.

[2] I released my reasons for decision on November 21, 2019. I granted the relief requested by the defendants. I also requested written costs submissions. I have now received and considered those submissions.

[3] The defendants argue that they have been successful and seek an award for fees in the amount of $20,000.00, along with $4,709.22 for disbursements. They also point to their offer to settle made approximately one month before the hearing date that proposed an order staying this action on a without costs basis.

[4] A large part of the plaintiffs’ costs submissions attempts to re-argue the merits of the motion. The plaintiffs also included a request for leave to amend their statement of claim as part of their costs submissions. These are not appropriate costs submissions.

[5] However, I do agree with the plaintiffs with respect to the issues involving the June 20, 2019 appearance and the quantum of costs requested by the defendants generally.

[6] The first return date was scheduled by the defendants on a regular motions list. As the ultimate hearing of this motion confirmed, this matter should not have been scheduled as a short motion in the first place. The defendants are not entitled to costs in relation to the first attendance. The plaintiffs’ time that day and their preparation time was wasted.

[7] I also agree that much of the defendants’ legal argument on this motion repeated the defendants’ argument in the earlier case of Evans v. Mattamy Homes Ltd., 2019 ONSC 3883 (Master) where the defendants were represented by the same counsel.

[8] In my view, $2,000.00 in disbursements for photocopying is excessive.

[9] There should therefore be a reduction to the costs requested by the defendants to account for these factors.

[10] I do note that the defendants served a reasonable offer to settle one month prior to the ultimate hearing date. They were required to prepare a lengthy supplementary factum when the plaintiffs declined to accept the offer to settle. I have taken this into consideration as well.

[11] When dealing with the costs of a motion or other proceeding, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] OJ No. 4495 (CA) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] OJ No. 2634 (CA) at paragraph 26. In Davies v. Clarington (Municipality), 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:

Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[12] I have reviewed the defendants’ costs outline with these principles in mind and having regard to the factors set out above. In my view, it is fair and reasonable that there be a reduction of approximately 50% in the amount of costs requested. The plaintiffs shall pay the defendants’ costs of this motion fixed in the amount of $12,500.00 inclusive of HST and disbursements. These costs shall be paid by March 2, 2020.

Master R. A. Muir

Date: 2020 01 30