DATE: 20210915

ONTARIO SUPERIOR COURT OF JUSTICE

RE: CSI Toronto Car Systems Installation Ltd.

AND:

Pittasoft Co., Ltd.

AND RE: CSI Toronto Car Systems Installation Ltd.

AND:

Pittasoft Co., Ltd. and Automobility Distribution Inc.

BEFORE: Justice Mohan D. Sharma

COUNSEL: Howard Wolch, for the Plaintiff

Peter A. Downard, for the Defendant Pittasoft Co., Ltd.

Kate Findlay, for the Defendant Automobility Distribution Inc.

HEARD: August 26, 2021

ENDORSEMENT

[1] This is my cost decision arising from the decision granting the plaintiff’s motion, and dismissing the cross motion of the defendant, Pittasoft Co., Ltd., which decision is reported as CSI Toronto Car Systems Installation Ltd. v. Pittasoft Co., Ltd., 2021 ONSC 5117.

[2] The plaintiff seeks partial indemnity costs in the amount of $116,706.47. In its submissions and in support this cost order, it asks the Court to consider the conduct of the defendant, Pittasoft Co., Ltd. (“Pittasoft”) in the action which it states was suspicious, tactical and abusive. It cites (a) Pittasoft’s reliance on the arbitration clause provision, (b) the fact that it commenced a separate action in Korea that was only withdrawn after it was faced with the plaintiff’s motion, (c) the costs incurred by the plaintiff in defending the Korean action, and (d) that plaintiff’s counsel suggested to Pittasoft’s counsel that no expert Korean legal opinion was required from either side, but Pittasoft’s counsel disagreed.

[3] Pittasoft argues that the costs claimed by the plaintiff are excessive, and that no costs should be awarded for the second Korea law expert retained by the plaintiff since the first expert failed to deliver a timely Acknowledgement of Expert’s Duty thereby questioning the independence of that first expert. It also notes that the affidavit material of the plaintiff’s principal roamed beyond issues relevant to this motion.

[4] Pittasoft’s cost submissions did not comment on the plaintiff’s assertion that it proposed to Pittasoft’s counsel that no expert Korean legal opinion was required from either side. A significant portion of the costs claimed by the plaintiff relate to this disbursement, totaling $51,320.63.

[5] The defendant, Automobility Distribution Inc. (“Automobility”), did not file material in response to this motion. Its counsel only made brief oral submissions seeking the same relief Pittasoft sought on this motion, based on much of the same arguments raised by Pittasoft.

[6] Pursuant to s. 131(1) of the Courts of Justice Act, the Court has a broad discretion when determining the issue of costs. Rule 57.01(1) sets out the factors to be considered by the Court when fixing costs. The overall objective of fixing costs is to determine an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v Public Accountants Counsel for Ontario, 2004 14579 (ON CA), [2004] OJ. No. 2634 (C.A.). The court must also be mindful of the proportionality principle and access to justice when issuing a cost award.

[7] In my view, Pittasoft did engage in unnecessarily aggressive and strategic conduct that made this otherwise straightforward dispute complex. The fact that Pittasoft was insistent on relying upon Korean law experts, which had little to no bearing on my decision and which the plaintiff sought to avoid, also factors into my analysis.

[8] Having considered the above factors and the submissions of the parties, I order that Pittasoft pay costs to the plaintiff in the amount of $80,000.00, and that Automobility pay costs to the plaintiff in the amount of $3,000.00, both inclusive of disbursements and HST.

Justice Mohan Sharma

Date: September 15, 2021