COURT FILE NO.: CV-18-00603953
DATE: 20210719
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Biao lIU
Plaintiff
- and -
dong jin qiu
Defendant
Dr. Ran He and Ye Yuan, for the Plaintiff
Peter Lulic, for the Defendant
HEARD at Toronto: in writing
COSTS ENDORSEMENT
DAVIES J.
[1] Biao Liu sued Dong Jin Qiu for breach of contract. Mr. Liu claimed that in December 2016 he and Mr. Qiu entered into a verbal agreement to buy and redevelop a residential property in Toronto as a joint business venture. Mr. Liu claimed that he and Mr. Qiu agreed to contribute equally to the purchase of the property and the cost of the new construction. They also agreed to share equally in the profits when the property was resold. Mr. Qiu argued that he and Mr. Liu never agreed on the essential terms of their business venture and, as a result, there was no enforceable contract. I found in favour of Mr. Liu and ordered Mr. Qiu to pay Mr. Liu $171,203.01 in damages (Liu v. Qiu, 2021 ONSC 3461).
[2] Mr. Liu now seeks $45,757.27 in costs.
[3] Mr. Liu made a formal offer to settle for $100,000 plus partial indemnity costs on December 5, 2019 – 14 months before trial. Mr. Liu did not withdraw his offer to settle before the trial started. Mr. Liu was awarded more in damages after trial than his settlement offer. Under Rule 49.10, Mr. Liu is entitled to partial indemnity costs for work done up until December 5, 2019 and substantial indemnity costs thereafter, unless I order otherwise. I am satisfied that Mr. Liu’s offer complies with the requirements of Rule 49 and he is entitled to substantial indemnity costs after the settlement offer was made.
[4] Notwithstanding Rule 49.10, the cost award must be “fair and reasonable” and must balance the goals of compensating a successful party with fostering access of justice: Boucher v. Public Accountants Council (Ontario) (2004) 14579 (ONCA). Rule 57.01 sets out several factors the Court may consider in exercising its discretion to award costs, including the time spent, the experience of counsel, the results achieved, the complexity of the matter, the conduct of the parties and the amount the unsuccessful party could reasonably expect to pay.
[5] In total, Mr. Liu’s counsel claims he and his associate spent 160 hours on this matter. Of that, 48 hours were before the offer to settle was made. Those 48 hours were spent drafting the Statement of Claim, preparing the Affidavit of Documents, conducting examinations for discovery, answering undertakings, attending mediation and preparing the trial record. In my view, the hours claimed for these steps are reasonable.
[6] Mr. Liu’s counsel spent a further 112 hours after the offer to settle was delivered. The vast majority of that time – almost 90 hours – was spent preparing for trial, attending trial and preparing closing submissions. The trial in this matter lasted four days and I asked counsel for written closing submissions. I find that the hours claimed by Mr. Liu’s counsel are reasonable given the length of the trial and the complexity of the factual and legal issues. The rates charged are also reasonable given counsel’s years of experience.
[7] Mr. Qiu did not make any substantive submissions on the issue of costs. Nor did he submit a costs outline. I, therefore, have no information about Mr. Qiu’s costs and whether they are comparable to Mr. Liu’s costs. I am satisfied that it is reasonable for Mr. Qiu, as the unsuccessful party, to expect to pay roughly $45,000 in costs for a four-day contested trial after a Rule 49 offer was delivered.
[8] Mr. Qiu is ordered to pay Mr. Liu $45,757.27 in costs within 30 days.
Davies J.
Released: July 19, 2021
Liu v. Qiu, 2021 ONSC 5047
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Biao lIU
Plaintiff
- and -
dong jin qiu
Defendant
COSTS ENDORSEMENT
Davies J.
Released: July 19, 2021