Court File and Parties

COURT FILE NOS.: CV-17-581689, CV-17-582676

DATE: 2020-12-07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RUI ZHANG, Plaintiff

AND:

CHENG LIN, HUI DONG, ROYAL FAMILY REALTY INC. and VICKY YI, Defendants

CHENG LIN and HUI DONG, Plaintiffs

AND:

RUI ZHANG and ROYAL FAMILY REALTY INC., BROKERAGE, Defendants

BEFORE: Paul B. Schabas J.

COUNSEL: Leon Li, for Cheng Lin and Hui Dong Dheeraj Bhatia, for Rui Zhang

HEARD: October 2, 2020

COSTS ENDORSEMENT

[1] The defendants (plaintiffs by counterclaim) Cheng Lin and Hui Dong were successful on their motion for summary judgment: Zhang v. Lin, 2020 ONSC 6559, released on October 27, 2020. They now seek costs on a full indemnity basis, relying on an Offer to Settle made on December 4, 2019, and the fact that the plaintiff (defendant by counterclaim) Rui Zhang made allegations of fraud and sought punitive damages in her claim. The plaintiff has not responded or taken a position with respect to costs.

[2] While I agree that the lawyer for Zhang asserted fraud in his submissions and took a very aggressive approach to this case, I am not satisfied that the case merits the very unusual result of costs on a full indemnity basis. I also have concerns about the Offer to Settle which, while it represented some compromise, the compromise was limited and was close to what might be characterized as an “offer to capitulate.”

[3] Further, while the plaintiff was unsuccessful, I do not agree with the characterization of her position as “spurious” or so utterly lacking merit as to, on its own, justify an elevated award of costs.

[4] Costs are in the discretion of the Court. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case: Boucher v. Public Accountants Counsel for Ontario, 2004 CanLII 14579 (Ont. C.A.). Regard should also be given to the factors in Rule 57.01(1) of the Rules of Civil Procedure, and that the court should seek to balance the indemnity principle with the fundamental objective of access to justice.

[5] I have carefully reviewed the Costs Outline and the points made in it, as well as the Costs Submissions of the defendants. In my view the amount sought on a partial indemnity basis is high for a motion of this kind; however, taking into account the plaintiff’s conduct, the Offer to Settle and the outcome, it is a reasonable amount that Zhang ought reasonably be expected to pay. Accordingly, I award costs to the defendants Lin and Dong in the amount of $46,567.10, inclusive of disbursements and HST.

Paul B. Schabas J.

Date: December 7, 2020