Court File and Parties
COURT FILE NO.: CV-19-804842 DATE: 2022/01/05
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Adam Babineau & 2588168 Ontario Inc., Plaintiffs – and – Hardy Capital Corp, Tameshwar Hardyal, & Centrum Mortgage Masters Inc., Defendants
COUNSEL: Edward Conway and Daniel Ebady, for the Plaintiffs No one Responding for the Defendants
HEARD: In writing
Costs decision Beaudoin J.
[1] The Plaintiffs were successful on their motion for partial summary judgement. They seeks costs in the amount of $38,677.88 on a full indemnity basis and in the amount of $26,012.66 on partial indemnity basis.
[2] The Defendants did not file any responding materials to the motion for summary judgment nor have they file any material in response to the costs submissions of the Plaintiffs. Their counsel, who has attempted to be removed as solicitor of record was provided with a copy of the cost submissions.
[3] The plaintiffs submit that the defendants should have consented to judgment as there was no defense having repeatedly admitted their legal obligation to pay the amount claimed. In support of their claim for full indemnity costs, the Plaintiffs argue that the entire costs were wasted because of the failure of the respondents to concede a fact that should have readily been admitted.
[4] They further submit that there was significant evidence of fraud by the respondents and that this further supports their full recovery of costs. The summary judgment motion had been adjourned on terms by Kershman J. The defendants failed to comply with any of those terms.
Conclusion
[5] Having regard to the factors set out in Rule 57.01 I conclude that there is insufficient evidence to make a finding of fraud against the Defendants. Even so, their conduct during this litigation is worthy of sanction. There was no genuine defence to the claim for repayment of the funds advanced by the Plaintiffs and they forced the Plaintiffs to bring their motion. They sought to delay the matter and did not comply with reasonable terms imposed by the Court.
[6] The Plaintiffs filed an extensive motion record that was of assistance to the court. In my review of the dockets, I note that considerable time was spent on legal research which I conclude is not recoverable in this case and there is no apparent justification for the need two counsel. The motion did not dispose of the action I its entirety.
[7] Having regard to the amount that an unsuccessful party could have been expected to pay, I fix the Plaintiffs costs in the all-inclusive amount of $20,000.
Mr. Justice Robert N. Beaudoin