COURT FILE NO.: CV-20-00642376-0000
DATE: 20220707
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TAK MING KWAN and WINNIE WING YUE KWAN
Plaintiffs
- and –
LSN INVESTMENTS INC. and KWOK KEUNG NGAN
Defendants
-and-
STEPHEN CHI-KEUNG TAM, DAVID LIU, CULTURELINK REALTY INC. and HOMELIFE CULTURELINK REALTY INC.
Third Parties
AND BETWEEN:
LSN INVESTMENTS INC.
Plaintiff by Counterclaim
-and-
TAK MING KWAN (also known as KWAN TAK MING) and WINNIE WING YUE KWAN (also known as KWAN W. Y. WINNIE)
Defendants to the Counterclaim
AND BETWEEN:
LSN INVESTMENTS INC.
Plaintiff by Crossclaim
-and-
KWOK KEUNG NGAN
Defendant to the Crossclaim
Ryan M. Kerr for the Plaintiffs
Gerald Matlofsky for the Defendant LSN Investments Inc.
HEARD: In writing
PERELL, J.
REASONS FOR DECISION – COSTS
“What's sauce for the goose is sauce for the gander” [John Heywood, The Proverbs, Epigrams, and Miscellanies of John Heywood, 1562]
[1] In this abortive real estate transaction claim, counterclaim, crossclaim, and third party claim, the Plaintiffs, the purchasers, brought a summary judgment motion for the return of their $60,000 deposit and for dismissal of the Defendant vendor’s approximately $260,000 counterclaim for damages for breach of contract. The Plaintiffs’ motion was successful.[^1]
[2] The Plaintiffs seek costs on a partial indemnity basis. They claim $35,668.79, all inclusive, based on an hourly rate of $300.
[3] The Defendant submits that the cost assessment should be stayed pending the determination of the crossclaims and third party claims against Kwok Keung Ngan, Stephen Chi-Keung Tam, David Liu, Culturelink Realty Inc., and Homelife Culturelink Realty Inc. In the alternative, the Defendant submits that the partial indemnity costs should be fixed at $6,229.12 plus disbursements of $1,796.47 for transcripts for an award of $8,025.59, all inclusive.
[4] The court’s discretion in awarding costs arises under the authority of s. 131(1) of the Courts of Justice Act[^2] and is to be exercised by a consideration of the factors in rule 57.01(1) of the Rules of Civil Procedure.[^3] These factors include the principle of indemnification, the reasonable expectations of the parties, the complexity of the proceeding, the importance of the proceeding, and the conduct of the parties in litigation.
[5] The assessment of reasonableness is discretionary and very much dependent upon the circumstances of each case. In some cases, it may be reasonable for the successful party to make exhaustive efforts and to commit enormous legal resources, and in those cases, it might be said that the unsuccessful party could reasonably expect to pay those costs. In other cases, however, the successful party may have been well served by giving his or her lawyer instructions to make exhaustive efforts, but it might be disproportionate and unreasonable to expect the unsuccessful party to pay those costs, even if he or she would have expected or anticipated that his or her foe would have marshalled those legal resources.[^4]
[6] In Davies v. Clarington (Municipality)[^5] at para. 52, Justice Epstein stated that the overriding principle in awarding costs is reasonableness. She stated:
- As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher [Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)], this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said: "[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice."
[7] In the immediate case, the main action is over, and the Plaintiffs are entitled to an award of costs as the successful party in the main action. The outcome of the crossclaim and third party proceedings will not change that entitlement, and I see no basis to stay the assessment of costs.
[8] To justify its submission that the costs award should be reduced, the Defendant made item by item objections. For examples:
“Depositions 28 hours" This is over docketed The Plaintiff's Affidavit was 22 paragraphs in length […]. Three hours is fair and reasonable.
“Oral arguments 11 hours". The court hearing was 2 hours in length and the compendium was to a very great extent a duplicate of the material in LSN's hyperlinked materials: 2 hours is fair and reasonable
[9] All of the Defendant’s submissions are belied by the facts that: (a) the Defendant submitted a cost outline on May 11, 2022, the eve of the hearing, and claimed $43,670.00 in partial indemnity costs for the motion alone; and (b) my review of the Plaintiffs’ claim for costs satisfies me that the Bill of Costs is fair and within the reasonable expectations of the Defendant.
[10] I grant the Plaintiffs their costs as requested. Order accordingly.
Perell, J.
Released: July 7, 2022
COURT FILE NO.: CV-20-00642376-0000
DATE: 20220707
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TAK MING KWAN and WINNIE WING YUE KWAN
Plaintiffs
- and –
LSN INVESTMENTS INC. and KWOK KEUNG NGAN
Defendants
-and-
STEPHEN CHI-KEUNG TAM, DAVID LIU, CULTURELINK REALTY INC. and HOMELIFE CULTURELINK REALTY INC.
Third Parties
AND BETWEEN:
LSN INVESTMENTS INC.
Plaintiff by Counterclaim
-and-
TAK MING KWAN (also known as KWAN TAK MING) and WINNIE WING YUE KWAN (also known as KWAN W. Y. WINNIE)
Defendants to the Counterclaim
AND BETWEEN:
LSN INVESTMENTS INC.
Plaintiff by Crossclaim
-and-
KWOK KEUNG NGAN
Defendant to the Crossclaim
REASONS FOR DECISION – COSTS
PERELL J.
Released: July 7, 2022
[^1]: Kwan v. LSN Investments Inc., 2022 ONSC 3174. [^2]: R.S.O. 1990, c. C.43. [^3]: R.R.O. 1990, Reg. 194. [^4]: Das v. George Weston Limited, 2017 ONSC 5583 at para. 65, var’d 2018 ONCA 1053. [^5]: (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.).