COURT FILE NO.: CV-13-2155-00
DATE: 2022 08 02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ESTATE OF SULOCHANA SHANTHAKUMAR by her estate trustee, SANTHA KUMAR MYLABATHULA
Plaintiff
- and -
ROYAL BANK OF CANADA, SIVA GURRAPPADI, WILLIAM SYKES, USHA RADHAKRISHAN, SHEILA WILSON, ATTORNEY GENERAL OF CANADA, PHILLIP CARVER, ALBERT YANG, and THE ATTORNEY GENERAL FOR THE PROVINCE OF ONTARIO
Defendants
P. CALLAHAN, for the Plaintiff
G. BOWDEN, for the RBC Defendants
K. WATT, for the RCMP Defendants
HEARD: In Writing
REASONS FOR DECISION
LEMAY J
[1] On June 24th, 2022, I released a decision in respect of undertakings and refusals in this matter (see 2022 ONSC 3787). I directed a timetable for the completion of costs submissions from the parties, and indicated that this timetable could not be varied, even on consent, without my leave.
[2] Both the Plaintiff and the RBC Defendants moved on various undertakings and refusals in this case. The Plaintiff was largely unsuccessful on their part of the motion and the RBC Defendants were almost entirely successful on their part of the motion. As a result, the RBC Defendants were invited to provide their costs submissions first and the Plaintiff second.
[3] Counsel for the RBC Defendants provided his costs submissions in accordance with that timetable. I have not heard from counsel for the Plaintiff. Counsel for the RBC Defendants wrote to my assistant on July 19th, 2022 to advise that he had not received various items from counsel for the Plaintiff including the Plaintiff’s costs submissions, which were due on July 14th, 2022. He copied counsel for the Plaintiff on this letter. I am not aware of any reply having been sent to this letter.
[4] On July 28th, 2022 at 11:47 a.m., my judicial assistant wrote to counsel for the Plaintiff and his assistant asking, if costs submissions had been provided on time, that they be re-provided to my judicial assistant. No response has been received to this e-mail.
[5] As a result, I am deciding the issue of costs without the input of the Plaintiff.
[6] I should also note that the Plaintiff herself passed away just about a year ago. However, the action is being continued by her husband who was examined in place of the Plaintiff. Throughout the rest of the decision, I will refer to the Plaintiff’s husband when I am referring to the party who was examined and the Plaintiff’s Estate when I am referring to the party who has brought and is continuing this action.
Analysis and Decision
[7] Counsel for the RBC defendants seeks costs on a substantial indemnity basis in the sum of $10,350.00 plus HST. Substantial indemnity costs are sought on the basis that the Plaintiff‘s husband used intemperate language during the course of his examination, the motion had to proceed twice and counsel for the Plaintiff’s Estate adopted a very broad view of what was relevant from RBC’s witnesses but a very narrow view of what was relevant from his own witness, the Plaintiff’s husband.
[8] In considering the costs, I must address both the scale and the quantum of costs. I begin with the scale. Outside of the provisions of Rule 49, substantial indemnity costs should only be awarded in rare and exceptional cases. Hunt v. T.D. Securities Inc., (2003) 2003 CanLII 3649 (ON CA), 66 O.R. (3d) 481, Jassal v. Kaith, 2020 ONSC 3257. Generally, substantial indemnity costs are awarded where a party has behaved in an abusive, egregious or otherwise reprehensible manner. Skourtis v. The City of Toronto, 2021 ONSC 4492 at para. 7.
[9] This brings me to an analysis of the events in this case. Counsel for the RBC Defendants argues that the Plaintiff’s husband and his counsel misconducted themselves during the examination by refusing to answer questions that ought to have been answered and by using derogatory language such as “silly” “stupid” and “nonsense” to describe the questions.
[10] It is clear that the Plaintiff’s husband ought to have answered a whole series of questions that were posed to him. It is also clear from my reasons of June 24th, 2022 that the questions posed by RBC were not silly, stupid or nonsense. However, this is not grounds to award substantial indemnity costs. Instead, it is grounds to direct that the Plaintiff’s husband re-attend at his own expense to answer the questions that were missed. I have made that order.
[11] Counsel for RBC also argues that substantial indemnity costs should be awarded because of the procedural history of this motion. Briefly put, I set a timetable for this motion back in the fall of 2021. I had envisioned an oral hearing on February 8th, 2022 before one of my colleagues. However, counsel for the Plaintiff changed the relief that he was seeking on this motion and Barnes J. adjourned the hearing on February 8th, 2022.
[12] Given that there is a summary judgment motion proceeding in this matter during the week of October 3rd, 2022, I determined that the undertakings and refusals had to be dealt with in writing and I released a decision on these issues on June 24th, 2022.
[13] Counsel for RBC argues that these delays justify an award of substantial indemnity costs. I disagree. The fact that an adjournment was required because of the Plaintiff’s conduct does not, in and of itself, justify an award of substantial indemnity costs. This time is compensated by providing the RBC Defendants partial indemnity costs for the time thrown away. The costs award will reflect that fact.
[14] However, I note that there is certainly some evidence that is accumulating that the Plaintiff’s husband and the Plaintiff’s estate are attempting to delay this action. For example, the failure to notify the parties and the Court for several weeks that the Plaintiff had passed away delayed the proceeding and resulted in the expenditure of additional monies. Further, the manner in which the motion materials for the undertakings motion was handled could indicate efforts to delay this matter. Finally, in my reasons on the re-attendance (see 2022 ONSC 4438), I set out the reasons why I had concerns about the failure of counsel for the Plaintiff’s Estate to correspond with counsel for RBC. That conduct clearly raised concerns of delay.
[15] While I am not prepared to conclude that costs should be payable on a substantial indemnity basis at this point, the delays engaged in by the Plaintiff’s husband and the Plaintiff’s Estate are becoming sufficiently serious that, if further litigation that is caused by a delay on the part of either the Plaintiff’s husband or the Plaintiff’s Estate, costs for that litigation may very well be awarded on a substantial indemnity basis. Counsel for the Plaintiff should keep this concern in mind as the action moves forward.
[16] This brings me to the quantum of costs. In assessing the quantum, I am mindful of the provisions of Rule 57.01 of the Rules of Civil Procedure. The partial indemnity costs sought by the RBC Defendants are $8,404.00 inclusive of HST and disbursements.
[17] I am of the view that those costs are generally supportable for the following reasons:
a) The motion had to be adjourned on February 8th and then had to be argued in writing. This meant that more time was spent on this motion than might otherwise be required.
b) The motion was a dual motion for undertakings and refusals. Both sides were seeking additional information from the other side.
c) The RBC defendants were almost entirely successful and the Plaintiff was almost entirely unsuccessful on the motion.
d) The amount of time spent and Mr. Bowden’s rate are both entirely reasonable in the circumstances. In particular, a rate of $295.00 per hour for a lawyer called to the bar for more than thirty years is entirely reasonable.
[18] The only problem with the bill of costs for the RBC Defendants is that it includes time spent at assignment Court and time spent on the collection issues. That time is not recoverable in this part of the proceeding. This requires a deduction of approximately $1,300.00 plus HST from the amount sought by counsel for the RBC Defendants.
[19] As a result, I am of the view that costs in the sum of $7,000.00 inclusive of HST and disbursements are to be paid by the Plaintiff to the Defendant within thirty (30) days of today’s date.
[20] Counsel for the RBC Defendants ask for leave to file a writ for the costs regardless of whether the Order is issued and entered. I am not prepared to grant that relief. However, I am prepared to order that the approval of the Plaintiff and counsel for the Plaintiff to the form and content of the Order is dispensed with. The Order may be submitted to my judicial assistant for signature.
LEMAY J
Released: August 2, 2022
COURT FILE NO.: CV-13-2155-00
DATE: 2022 08 02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE ESTATE OF SULOCHANA SHANTHAKUMAR by her estate trustee, SANTHA KUMAR MYLABATHULA
Plaintiff
- and -
ROYAL BANK OF CANADA, SIVA GURRAPPADI, WILLIAM SYKES, USHA RADHAKRISHAN, SHEILA WILSON, ATTORNEY GENERAL OF CANADA, PHILLIP CARVER, ALBERT YANG, and THE ATTORNEY GENERAL FOR THE PROVINCE OF ONTARIO
Defendants
REASONS FOR DECISION
LEMAY J
Released: August 2, 2022