CITATION: 2638023 Ontario Inc. v. 1701288 Ontario Inc, 2021 ONSC 3302
COURT FILE NO.: CV-19-00640009-0000 DATE: 20210504
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
2638023 ONTARIO INC.
Plaintiff
– and –
1701288 ONTARIO INC, YAO JUN SITU, XIE TAO SU and HUI YING CAO
Defendants
Ken MacDonald, lawyer for the plaintiff
Howard Borlack, lawyer for the Defendants, 1701288 Ontario Inc. and Yao Jun Situ
Eric Brousseau, lawyer for the Defendants, Xie Tao Su and Hui Ying Cao
HEARD: Written Submissions
COSTS ENDORSEMENT
DIAMOND J.:
[1] By way of two Endorsements released as 2021 ONSC 1450 and 2021 ONSC 2333, I dismissed (a) a Rule 21 motion to strike brought by the defendants Xie Tao Su and Hui Ying Cao (“the individual defendants”) and (b) a Rule 20 motion for summary judgment brought by all the defendants.
[2] I have now received written costs submissions from all parties.
[3] The plaintiff was successful in resisting both motions. While costs would normally follow the event, the defendants argue that, for the reasons set out hereinafter, all parties should bear their own costs of both motions.
[4] The plaintiff seeks its costs of both motions fixed on a partial indemnity basis in the all-inclusive amount of $42,546.91. Regrettably, the plaintiff’s Costs Outline does not specifically delineate between the time spent and disbursements incurred for each motion. That said, it is apparent to me that the bulk of the time spent by counsel for the plaintiff dealt with responding to the defendants’ motion for summary judgment.
[5] Dealing first with the motion to strike, that motion was only brought by the individual defendants, and as such the plaintiff’s request that costs of the motion to strike be awarded against all defendants on a joint and several basis is improper. In any event, I see no reason to depart from the standard rule that costs ought to follow the event. The motion to strike was not complicated, and did not require any evidence as the claims against the individual defendants stood or fell based upon the contents of the Amended Statement of Claim. In the end, the claims for fraudulent misrepresentation against the individual defendants survived, but just barely.
[6] Having examined the Bills of Costs submitted by all parties, in my view a fair and proportionate result within the reasonable expectations of the individual defendants is to award the plaintiff its costs of the Rule 21 motion to strike payable forthwith in the all-inclusive amount of $7,500.00.
[7] After the motion to strike was decided, and prior to the hearing of the defendants’ motion for summary judgment, the plaintiff’s principal Bong Chan (“Chan”) drafted and delivered an email dated March 22, 2021 to, inter alia, counsel for the defendants. Counsel for the plaintiff was copied on Chan’s email.
[8] In that email, and with the defendants’ motions for summary judgment scheduled to be heard two days later, Chan advised of his receipt and review of the affidavit from the tenant Fortis Consulting Ltd., and took the position that the conduct of the defendants (i.e. presenting Chan with a “fraudulent document”), was a criminal offence, and Chan would “go to the police to press charges unless the plaintiff’s claim was resolved”.
[9] Under Rule 57.01(f) of the Rules of Civil Procedure, the Court shall consider whether any step in the proceeding was improper, vexatious or unnecessary in determining the costs of a motion.
[10] Rule 57.01(i) also enables the Court to consider “any other matter relevant to the question of costs”.
[11] The defendants submit that they were threatened by Chan with criminal charges in the event the defendants did not, presumably, take the plaintiff up on its offer(s) to settle. As a result, the defendants submit that given the clearly inappropriate and potentially criminal nature of Chan’s email, any costs award in favour of the plaintiff would “tacitly encourage and reward” Chan’s misconduct. As a result, the Court should send a clear message of disapproval and deny the plaintiff its costs of the motion for summary judgment.
[12] I agree. Chan’s email was an improper step that should result in the plaintiff being sanctioned and admonished. While Chan has the right to believe that the defendants intended to provide the plaintiff with the wrong Fortis lease, that issue is still very much live in this (and Fortis’ companion) proceeding, and should never form the basis of efforts to extort a settlement from a party through the threat of criminal charges.
[13] Bearing in mind that the plaintiff’s success on the motions for summary judgment was “borderline” as described by the defendants, in my view the appropriate result given Chan’s actions is to order no costs of the motions for summary judgment.
[14] Order accordingly.
Diamond J.
Released: May 4, 2021
CITATION: 2638023 Ontario Inc. v. 1701288 Ontario Inc, 2021 ONSC 3302
COURT FILE NO.: CV-19-00640009-0000 DATE: 20210504
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
2638023 ONTARIO INC.
Plaintiff
– and –
1701288 ONTARIO INC, YAO JUN SITU, XIE TAO SU and HUI YING CAO
Defendants
COSTS ENDORSEMENT
Diamond J.
Released: May 4, 2021