Court File and Parties

COURT FILE NO.: CV-20-00652970-0000 DATE: 20210729

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

YANG GAO also known as GAO YANG Applicant

– and –

CHU JA PARK and TRIBUTE (MUTUAL STREET) LIMITED Respondents

COUNSEL: Nick P. Poon, for the Applicant Larry J. Levine, Q.C., for the Respondent Chu Ja Park Michael Scaglione, for the Respondent Tribute (Mutual Street) Limited

HEARD: In writing

ENDORSEMENT AS TO COSTS

VERMETTE J.

[1] On June 27, 2021, I released reasons for judgment in this application. The parties were not able to agree on costs and have delivered costs submissions and bills of costs. Given that the Respondent Tribute (Mutual Street) Limited did not take any position on the Application, it is not seeking any costs and no costs are sought as against it.

[2] The Applicant seeks costs as against the Respondent Chu Ja Park on a substantial indemnity basis in the amount of $75,163.75 or, in the alternative, on a partial indemnity basis in the amount of $52,914.05. The Applicant’s position is that this is an appropriate case for substantial indemnity costs due to the importance of the matter, the complexity of the issues, the conduct of Ms. Park in raising as many defences as possible “to see which one will stick”, and the nature of the allegations (forgery, fraud and conspiracy) that were raised but not proven.

[3] Ms. Park disagrees that this is an appropriate case for costs on a substantial indemnity basis. She points out that while she attacked the integrity of the two real estate agents involved in the transaction, she made no allegations regarding the integrity of the Applicant, whom she never met. Ms. Park does not really dispute the reasonableness of the quantum of the costs sought by the Applicant on a partial indemnity basis, even though the costs that she incurred were significantly lower. Ms. Park’s bill of costs shows costs on a partial indemnity basis in the amount of $23,673.54 and costs on a substantial indemnity basis in the amount of $33,928.29.

[4] Substantial indemnity costs are only warranted in rare and exceptional cases where a party has engaged in behaviour worthy of sanction, such as where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties: Davies v. Clarington (Municipality), 2009 ONCA 722 at paras. 28-33. In my view, the conduct of Ms. Park in this case does not rise to the egregious level required to award costs on a substantial indemnity basis. While Ms. Park decided to pursue a number of positions/arguments despite their apparent weaknesses, this is insufficient to justify an elevated costs award: see Davies v. Clarington (Municipality), 2009 ONCA 722 at paras. 42-45.

[5] I agree with Ms. Park that she made it clear that she was not attacking the Applicant’s personal integrity in the litigation. The fact that she attacked the integrity of two non-parties is insufficient to trigger costs on a substantial indemnity basis.

[6] The Applicant relies on the case Republic Developments Inc. v. Butt, 2021 ONSC 1551, where substantial indemnity costs were awarded, and argues that it involved a situation very similar to the present case. In my view, Republic Developments Inc. v. Butt is distinguishable – in particular, the present case does not involve the kind of tactics, delay and non-compliance with a court order that were present in Republic Developments Inc. v. Butt.

[7] With respect to the issue of the quantum of costs, I find that the all-inclusive amount of $50,000.00 (on a partial indemnity basis) is fair and reasonable in light of the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, in particular the importance of the issues to the Applicant and the steps that were taken in the litigation (including a number of cross-examinations and Rule 39 examinations), which I find were appropriate.

[8] Accordingly, Ms. Park is ordered to pay costs to the Applicant in the amount of $50,000.00 (inclusive of fees, disbursements and HST), payable within 30 days.

Vermette J.

Released: July 29, 2021