COURT FILE NO.: CV-20-635251

DATE: 20210916

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Sative Yan-Ling Tsui and Jonathan Simon Levert,

Plaintiffs/Defendants by Counterclaim

AND:

Ye Zhuoqi and Re/Max Imperial Realty Inc.,

Defendants/Plaintiffs by Counterclaim

BEFORE: Justice Mohan D. Sharma

COUNSEL: Ruzbeh Hosseini and N. Joan Kasozi, for the Plaintiffs

Paul H. Starkman, for the Defendants

HEARD: July 22, 2021

ENDORSEMENT

[1] This is my cost decision following a motion and cross-motion, both for summary judgment, brought by the parties and reported at: Tsui v Zhuoqi, 2021 ONSC 5421.

[2] In my decision, I dismissed the defendants’ motion for summary judgment and granted summary judgment to the plaintiffs. I ordered the defendants to return a $31,000 deposit paid by the plaintiffs, and that the defendant, Ms. Zhuoqi, pay damages in the amount of $33,110.02.

[3] On February 19, 2020, the plaintiffs delivered an offer to settle. That offer required the return of the deposit of $31,000 and payment of damages in the amount of $16,000, which included the cost of an expert report.

[4] On January 4, 2021, the plaintiffs made a formal Rule 49 Offer to Settle. It sought the return of the $31,000 deposit, plus $10,000 in damages, and $11,000 in legal fees.

[5] Based on rule 49 and the dates of the offers, the plaintiffs seeks (a) costs in the amount of $29,285.55 which represents partial indemnity costs up to February 19, 2020 and substantially indemnity costs thereafter, or (b) $27,787.25 which represents partial indemnity costs up to January 4, 2021 and substantially indemnity costs thereafter. It also has disbursements of $2,151.60.

[6] The defendants argue no costs should be awarded because the plaintiffs did not plead “substantial damage” in their Statement of Claim. I disagreed with this position in my ruling on this summary judgment motion. Among other arguments, the defendants also argue that some of the time billed by the plaintiffs was duplicative. For example, several lawyers billed for preparation of a cross-examination, but only one lawyer attended the cross-examination.

[7] 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.

[8] 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 CanLII 14579 (ON CA), [2004] OJ. No. 2634 (C.A.). In determining costs, I must consider the factors set out in rule 57.01(1), as well as the principle of proportionality set out in rule 1.04(1.1). I keep in mind the Court should seek to balance the indemnity principle with the fundamental objective of access to justice.

[9] When offers to settle are made that are not accepted by the unsuccessful party, and the party who made the offer obtains judgment that is as favourable or more favourable than the offer, the party who made the offer is entitled to costs on a partial indemnity basis up until the date of the offer, and on a substantial indemnity basis thereafter, subject to the court ordering otherwise (r. 49.10).

[10] In this case, I am satisfied that an offer to settle was made by the plaintiffs that would entitle them to an award of costs on a substantial indemnity basis after the offer was made. However, I agree with the defendants that some of the costs incurred by the plaintiffs appear to have been unnecessarily duplicative.

[11] Having regard to the factors noted above, I order the defendants to pay the plaintiffs’ costs, fixed in the amount of $23,000 inclusive of disbursements and HST.

Justice Mohan Sharma

Date: September 16, 2021.