COURT FILE NO.: CV-16-561843CP
DATE: 20220120
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Valerie Barkley and Ronald Beaupre
Plaintiffs
– and –
Tier 1 Capital Management Inc., Dowarka Persaud, T1CM Principal Secured Mortgages Inc., Preeya Persaud, Patrick W. Jackson, John Lally, John G. Simmonds, J. Paul Fletcher, Fletcher & Crichlow LLP, Olympia Trust Company, KMJ & Associates Ltd., Robert W. Gowdy, Mondville Holdings Ltd., Nicholas DookHie, Diane CheTram, JoHN Doe and Jane Doe
Defendants
Kevin D. Sherkin for the Plaintiffs
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] The Plaintiffs Valerie Barkley and Ronald Beaupre lost their investment in what I shall label the River’s Edge Syndicated Mortgage. By Order dated May 13, 2019, I certified the action as against Mr. Dookhie and Ms. Chetram for a subclass of 11 Class Members that included Ms. Barkley and Mr. Beaupre. Ms. Barkley and Mr. Beaupre brought a motion for a default judgment against Mr. Dookhie and Ms. Chetram. The motion was granted.[^1] I awarded a subclass of 11 Class Members awarded $434,017.40 with interest to be paid on the judgment: (a) at the rate of 12% for the seven Class Members who invested through Larry Smith; and (b) at the rate of 9% for the four Class Members who invested through Kishor Bhingaradia.
[2] I ordered that the Plaintiffs may submit costs submissions within ten days of the release of these Reasons for Decision.
[3] The Plaintiffs submitted a Costs Outline. They claimed: (a) $62,978.55, all inclusive, on a partial indemnity basis; (b) $97,342.28, all inclusive, on a substantial indemnity basis; and (c) $107,651.43, all inclusive, on a full indemnity basis.
[4] I am not persuaded that the case at bar is one in which a punitive costs award is warranted. Costs on a substantial indemnity scale or full indemnity scale are reserved for rare and exceptional cases, where the conduct of the party against whom costs is ordered is reprehensible or where there are other special circumstances that justify costs on the higher scale.[^2]
[5] Therefore, applying the normal principles, I conclude that the Plaintiffs should recover costs on a partial indemnity basis for the default judgment motion and for the proceedings against Mr. Dookhie and Ms. Chetram. I assess those costs on a partial indemnity basis to be, $35,000 all inclusive.
Perell, J.
Released: January 20, 2022
COURT FILE NO.: CV-16-561843CP
DATE: 20220120
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Valerie Barkley and Ronald Beaupre
Plaintiffs
– and –
Tier I Capital Management Inc., Dowarka Persaud, T1CM Principal Secured Mortgages Inc., Preeya Persaud, Patrick W. Jackson, John Lally, John G. Simmonds, J. Paul Fletcher, Fletcher & Crichlow LLP, Olympia Trust Company, KMJ & Associates Ltd., Robert W. Gowdy, Mondville Holdings Ltd., Nicholas DookHie, Diane CheTram, JoHN Doe and Jane Doe
Defendants
REASONS FOR DECISION - COSTS
PERELL J.
Released: January 20, 2022
[^1]: 2022 ONSC 175
[^2]: Whitfield v. Whitfield, 2016 ONCA 720; St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280, supp. reasons 2010 ONCA 479; Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.); McBride Metal Fabricating Corp. v. H & W Sales Co. (2002), 2002 CanLII 41899 (ON CA), 59 O.R. (3d) 97 (C.A.); Alie v. Bertrand & Frère Construction Co. (2000), 11 C.L.R. (3d) 149 (Ont. S.C.J.), aff'd (2001), 2001 CanLII 62748 (ON CA), 11 C.L.R. (3d) 12 (Ont. C.A.)