Court File and Parties

COURT FILE NO.: CV-19-00633610-0000

DATE: 2022-11-22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AJITH SABARATNAM, Plaintiff

AND:

KANAPATHIPILLAI YOHANATHAN a.k.a. MOOKA TAMIL and MK TAMIL, 2137534 ONTARIO CORP. a.k.a. PARAII MEDIA GROUP and PARAII.COM, Defendants

BEFORE: VERMETTE J.

COUNSEL: James Lane, for the Plaintiff Melvin Rotman, for the Defendants

HEARD: In writing

ENDORSEMENT

[1] On August 18, 2022, I released an endorsement (2022 ONSC 4779) granting the Plaintiff’s motion for summary judgment in part and ordering the Defendants to pay to the Plaintiff $75,000 in general damages and $25,000 in punitive damages.

[2] The parties were not able to agree on costs and have delivered costs submissions.

Positions of the parties

a. Position of the Plaintiff

[3] The Plaintiff submits that there is no reason in this case to depart from the principle that costs are ordinarily awarded to the successful party. With respect to the two heads of relief that were claimed but not granted, the Plaintiff argues that neither of those issues formed a significant part of the Plaintiff’s written or oral submissions on the summary judgment motion, and that they were of relatively little importance to the issue of success on the motion.

[4] The Plaintiff points out that following the initial defamatory postings, a Notice of Libel was delivered to the Defendants affording them the opportunity to retract and apologize so as to avoid legal proceedings altogether. The Defendants did not do so.

[5] The Plaintiff submits that this is an appropriate case for an award of costs on a substantial indemnity basis given the Court’s finding that “the Defendants’ conduct was a marked departure from ordinary standards of decent behaviour and sufficiently reprehensible to merit an award of punitive damages.” The Plaintiff seeks his costs of the motion and the action on a substantial indemnity basis in the amount of $50,000. The partial indemnity figure included in the Plaintiff’s bill of costs is $36,657.59.

[6] The Plaintiff also seeks costs of a motion to adduce fresh evidence that has not been heard. According to the Plaintiff, the fresh evidence relates to an alleged defamatory entry about the Plaintiff on a website registered in the name of the individual Defendant. The Plaintiff states that motion materials were served, but that the motion was not heard as the Defendant opposed the materials coming before the Court. The Plaintiff argues that the costs of this motion, although not actually heard by the Court, should be included in the costs of the proceeding. In the alternative, the Plaintiff asks that the Court defer the costs of the motion to adduce fresh evidence to be considered in connection with a potential future motion under Rule 59.06 of the Rules of Civil Procedure.

b. Position of the Defendants

[7] The Defendants do not dispute the Plaintiff’s entitlement to costs. However, they argue that the costs sought by the Plaintiff are excessive and duplicative given the number of lawyers involved. The Defendants are particularly critical of the time spent with respect to the following categories in the Plaintiff’s bill of costs: Notice of Libel, Pleadings, Scheduling Discoveries, Affidavit of Documents and Motion for Summary Judgment. According to the Defendants, counsel were amicable toward each other and worked together to move the case forward.

[8] The Defendants submit that the post-hearing publication does not provide a basis to increase the costs award.

[9] The Defendants’ bill of costs reflects costs on a substantial indemnity basis in the amount of $11,275.00 and costs on a partial indemnity basis in the amount of $9,525.00.

Discussion

a. Scale of costs

[10] As has been observed in many cases, costs on an elevated scale are exceptional and are reserved for those situations when a party has displayed reprehensible, scandalous or outrageous conduct: see Quickie Convenience Stores Corp. v. Parkland Fuel Corporation, 2021 ONCA 287 at para. 4.

[11] While I did order the payment of punitive damages in this matter, it is my view that the Defendants’ conduct in this case does not rise to the egregious level required to award costs on a substantial indemnity basis. Among other things, there is no evidence that there was any reprehensible or outrageous conduct on the part of the Defendants in the context of the litigation. I note that the Defendants agreed that this case was appropriate for summary judgment, thereby facilitating an early resolution of this matter.

b. Quantum

[12] In my view, the Defendants’ bill of costs is low for a matter like this one, and I find that they should reasonably have expected to pay higher costs in the event that they were unsuccessful.

[13] However, I agree with the Defendants that the time that is reflected in the Plaintiff’s bill of costs is excessive and likely includes duplication of work between the timekeepers involved. Therefore, I will apply a reduction to the amount sought by the Plaintiff to ensure that the overall time claimed is reasonable in light of all the circumstances of this case.

[14] I agree with the Plaintiff that no reduction is warranted for the two heads of relief on which it was unsuccessful.

[15] Finally, I find that it would not be appropriate for this Court to grant costs for a motion that has not been heard and for which no materials have been submitted. Among other things, I am not in a position to assess the merits of the motion. However, I am not preventing the Plaintiff from seeking such costs in the future, in connection with another motion. It will obviously be within the discretion of the motion judge at that time to decide whether or not these costs should be granted.

Conclusion

[16] Taking the foregoing into account, as well as the factors set out in Rule 57.01(1) of the Rules of Civil Procedure and the reasonable expectations of the parties, I find that the fair and reasonable award of costs in favour of the Plaintiff for the action and the motion is on a partial indemnity basis in the all-inclusive amount of $23,000.00. In my view, this is an amount that the Defendants should reasonably have expected to pay in the event that they were unsuccessful on the action and motion.

[17] The costs are to be paid by the Defendants to the Plaintiff within 30 days.

Vermette J.

Date: November 22, 2022