COURT FILE NO.: CV-21-2578 DATE: 20220413 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Peter Chow and Davina Chow, Applicants AND: Gurdev Malhi and Manjinder Uppal, Respondents
BEFORE: Conlan J.
COUNSEL: Mr. S. Nanua, for the Applicants Mr. J. Mangalwadi, for the Respondents
ENDORSEMENT on costs
I. The Nature of the Proceeding
[1] Peter Chow and Davina Chow (“Chows”) applied for an order that Gurdev Malhi and Manjinder Uppal (“Uppal”), remove, at their own expense, that portion of their driveway that encroaches onto the neighbouring property owned by the Chows, and that Uppal do so in accordance with the Town of Oakville’s by-laws and required permits, and that Uppal pay for and complete the necessary restoration work to return the Chows’ property to its pre-encroachment state.
[2] The Application was heard in about one hour on January 20, 2022, via Zoom. No viva voce evidence was presented by either side. No out-of-court examinations took place beforehand.
II. The Result of the Proceeding
[3] In its decision, Chow v. Malhi, 2022 ONSC 481, this Court granted the Application and invited written submissions on costs if they could not be settled between the parties. Those written submissions have been received and reviewed.
III. The Positions of the Parties on Costs
[4] The Chows filed a Costs Outline and an Offer to Settle. The former shows total costs sought in the amount of $5634.02, about 83 per cent of their full indemnity costs. The latter, dated October 6, 2021, offered to settle the dispute essentially in accordance with the relief granted by this Court and with Uppal paying costs on a reduced partial indemnity scale.
[5] Uppal filed a Costs Outline showing total costs of $6593.80 (full indemnity) and $4095.00 (partial indemnity). One of the many points made by Uppal is that the Notice of Application and Offer to Settle were “wrongly served upon the Real Estate Lawyer”. Uppal also filed some irrelevant documents pertaining to some apparent dispute about the form and content of the Order emanating from this Court’s decision on the Application; those documents are irrelevant on the issue of costs.
IV. Decision on Costs
[6] Costs awards are designed to (i) partially indemnify successful litigants (here, the Chows), (ii) encourage settlement (here, I am aware that both sides did try to settle the matter before the hearing date, however, I was only provided with a formal offer to settle on behalf of the Chows), and (iii) discourage bad or inappropriate conduct by or on behalf of litigants (here, I find none committed by either side).
[7] The end goal of any costs award is to order something that is fair, just, reasonable, and proportionate, taking into account all of the circumstances. Those circumstances include, but are not limited to, the factors set out at 57.01(1) of the Rules of Civil Procedure. Here, because the result for the Chows was as favourable as or more favourable than the terms of their Offer to Settle, they are entitled to partial indemnity costs to the date that the Offer was served and substantial indemnity costs from that date, unless this Court orders otherwise: 49.10(1) of the Rules of Civil Procedure.
[8] The Costs Outline filed by the Chows appears to comply with that Rule in that the earlier time spent is charged at the partial indemnity rate, and the later time spent (from the date of the Offer) is charged at the substantial indemnity rate.
[9] I do not accept the argument that the Offer was “wrongly served”, but I do think that it would have been better to have served the Offer on both the real estate lawyer and the Respondents, since it may have been unclear at that time if the real estate lawyer was actually acting as counsel for the Respondents on the litigation matter. In any event, whether for that reason or for reasons of general fairness, justice, reasonableness, and proportionality, I have decided to reduce the costs award in favour of the Chows by $500.00 – from the $5634.02 sought to $5134.02.
[10] This Court, therefore, orders that Uppal shall pay to the Chows, within thirty (30) calendar days after April 11, 2022, the sum of $5134.02 in costs.
Conlan J.
Date: April 13, 2022