COURT FILE NO.: 4749/17
DATE: 2021 12 21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE REGIONAL MUNICIPALITY OF HALTON
Talia Gordner, for the Plaintiff
Plaintiff
- and -
DAVID ATSUSHI OHASHI, PAMELA GLORIA OHASHI, SYNTEG INC., SYPAR LIMITED LIABILITY COMPANY, MARINO WOO, FLOVAL EQUIPMENT LTD., TODD McLAREN, JOHN DOE INC. AND JOHN DOE
Paul Starkman, for the Ohashi defendants
Defendants
IN CHAMBERS
DECISION ON COSTS
Daley J.
[1] The plaintiff successfully moved under rule 30.10 for the production of financial records related to the Ohashi Defendants from third-party financial institutions: Regional Municipality of Halton v. Ohashi, 2021 ONSC 6780.
[2] In this action the plaintiff has asserted a loss of more than $20 million because of the fraudulent conduct of the defendants.
[3] Given the plaintiff's success on the motion, it is presumptively entitled to the costs of the motion.
[4] The plaintiff filed submissions as to costs including a costs outline detailing costs on a partial, substantial, and full indemnity scales.
[5] The Ohashi Defendants filed cost submissions, but no costs outline.
[6] Having considered the parties' submissions, I have concluded that costs of this motion should be determined at this time and not referred to the trial judge. This was a discrete procedural production motion in respect of which I am best placed to determine the appropriate order as to costs.
[7] The defendants' submission that consideration of the costs of this motion should be left to the trial judge is contrary to the provisions of rule 57.03 in respect of contested motions, which calls for the expeditious and timely determination of costs.
[8] While the legal issues considered on this motion under rule 30.10 were straightforward, the positions advanced by the Ohashi Defendants significantly added to the issues involved and the time required to hear and adjudicate this motion.
[9] The defendants expanded the issues to be determined by firstly submitting that the affidavit evidence supporting the plaintiff's motion was inadmissible. Further, the defendants asserted that the reasons for decision of the trial judge in the criminal proceedings were admissible in evidence on this motion.
[10] Also, the defendants asserted that if the order sought by the plaintiff was granted their constitutionally protected privacy rights would be breached and on that basis the plaintiff's motion should be dismissed.
[11] In their submissions as to costs, the defendants submitted that the privacy issue was raised by the court. I disagree. The defendants put the issue of their privacy squarely before the court as set out in their factum. As the Supreme Court of Canada had just recently released its decision in Sherman Estates v. Donovan, 2021 SCC 25, counsel were called upon to file submissions as to how that decision would affect the defendants' submission that they would suffer a privacy breach if the financial records were disclosed.
[12] The defendants make the very unusual submission that they should bear no costs associated with their alleged breach of privacy argument on the basis that it was the court who raised this issue. Clearly the record shows the contrary given that the defendants raised that very issue of privacy in their factum and during their submissions on the motion.
[13] As to the quantum of costs, the defendants asserted that the 50 billable hours incurred by counsel for the plaintiff was excessive and unreasonable given the nature of this motion.
[14] They also put forward submissions on quantum which simply are tantamount to a re-argument of their position put forward on the motion and as such they do not constitute any proper submissions as to costs.
[15] The defendants elected not to file a costs outline and as such the court is left to consider the plaintiff's costs outline without the benefit of knowing what costs were actually incurred by the defendants in responding to the motion. The defendants' costs outline would show what costs the defendants could reasonably have expected to pay in the event they were unsuccessful on the plaintiff's motion.
[16] It has been held that an attack on costs claimed based on excessive time spent is no more than an "attack in the air" where that party has not delivered its own costs outline. It has also been held that the court may rightly infer that the party opposite devoted as much or more time to the proceeding as did the plaintiff in this case. The failure to deliver a costs outline, when so ordered, may not be determinative of what is a fair and proper amount for costs, but is one factor that may be considered: Risorto v. State Farm Mutual Automobile Insurance Co., 2003 CanLII 43566 (ON SC), 64 OR (3d) 135 (Winkler J, as he then was).
[17] Counsel for the plaintiff seeks costs and those costs as claimed on a partial indemnity basis, inclusive of disbursements, total $22,892.14.
[18] On considering the plaintiff's costs outline, it is noted that the billable time is concentrated in relation to Talia Gordner, a partner in the firm representing the plaintiff and with respect to Paola Ramirez a 2019 associate with the firm. The time details set out in the costs outline show that a large part of the billable time incurred was in respect of work done by the associate lawyer, as opposed to counsel Gordner who argued this motion. This leads me to conclude that the legal work involved in preparing and advancing this motion was properly assigned to a more junior counsel with a lower hourly billing rate and as such the defendants' submission that there were too many lawyers involved and too many hours incurred is a groundless assertion.
[19] Considering the factors in rule 57.01, I have concluded that given the significance of the relief sought on this motion, the time spent, the amount at stake in the action, as asserted in the statement of claim, and the defendants' conduct in expanding the issues to be determined on the motion, the partial indemnity costs as claimed by the plaintiff are fair, reasonable, proportionate and an amount that the defendants should reasonably have expected to pay in the event they were unsuccessful on this motion.
[20] In the result the defendants, who are jointly and severally liable for these costs, shall pay to the plaintiff costs in the all-inclusive sum of $22,892.14 within 30 days from the date of release of this ruling.
Daley J.
Released: December 21, 2021
COURT FILE NO.: 4749/17
DATE: 2021 12 21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
REGIONAL MUNICIPALITY OF HALTON
- and -
DAVID ATSUSHI OHASHI, PAMELA GLORIA OHASHI, SYNTEG INC., SYPAR LIMITED LIABILITY COMPANY, MARINO WOO, FLOVAL EQUIPMENT LTD., TODD McLAREN, JOHN DOE INC. AND JOHN DOE
DECISION ON COSTS
Daley J.
Released: December 21, 2021