COURT FILE NO.: CV-22-2600-0000 DATE: 2023-06-26

SUPERIOR COURT OF JUSTICE – ONTARIO 491 Steeles Avenue East, Milton ON L9T 1Y6

RE: The Senac Group Incorporated and Steve Nembhard, Applicants -and- Shorin Samuda, Respondent

BEFORE: C. Chang J.

COUNSEL: O. Ogunniyi, for the Applicants F. Hassan, for the Respondent

HEARD: June 23, 2023 (in writing)

COSTS ENDORSEMENT

[1] Further to my endorsement dated June 7, 2023 (“My Endorsement”), I have now received the parties’ respective written submissions on costs.

Parties’ Positions

[2] The applicants seek their costs on a substantial indemnity basis in the all-inclusive amount of $66,757.47. They submit that they were “entirely successful” on their application and are therefore entitled to costs. They do not, however, provide any justification – by way of relevant argument or authority – for those costs to be on a substantial indemnity basis.

[3] The respondent seeks his costs “on a partial indemnity scale, if not more” – whatever that means – in the all-inclusive amount of $24,325.87. He submits that he was more successful on the application than the applicants and that the applicants should only have brought application for the “1 prayer for relief” that they ended up being granted. Once again, no relevant argument or authority was provided in support of this argument.

Parties’ Disregard of My Directions re: Costs

[4] At paras. 37-39 of My Endorsement, I cautioned the parties that, given their very concerning approach to this litigation, I was inclined to order that there be no costs, subject only to the existence of any applicable offers to settle. I also cautioned the parties that, regardless of such offers to settle, I may still order no costs. Finally, and most importantly, I admonished the parties to prepare their costs submissions with those cautions in mind.

[5] Despite that clear admonition, neither side prepared its costs submissions in accordance with my direction.

[6] The parties’ offers to settle relate to unparticularized global payout amounts that bear no apparent relation whatsoever to the Disputed Fees, include costs of the application (which were not yet determined), are contingent on other events, contain terms outside the scope of this application, were open for acceptance for only a matter of days and are otherwise not assistive in determining the relevance of those offers to the appropriate scale and quantum of costs. Furthermore, only passing reference was made in the parties’ costs submissions to those offers to settle, so the relevance of the latter to the former is far from apparent.

[7] Once again, the parties simply disregarded what was required of them and decided that their approach to the issue of costs should mirror their approach to the applicable procedural law: blissful ignorance.

[8] Even more troubling is the fact that, in their costs submissions, the parties acknowledge their breaches of the procedural law, but submit that they should not be held responsible for those breaches in any way. To make matters worse, they provide neither authority nor reasoning to support their proposed utter lack of accountability.

Decision

[9] The applicants were successful on this application and are entitled to their costs.

[10] I do not accept the respondent’s argument that he was more successful in the application. Although the applicants did not obtain judgment on all of the relief claimed in the notice of application, it is clear that the matter evolved following the issuance of that document. As a result of, among other things, concessions from both sides, the disputed issues had been significantly narrowed by the time the application was ultimately heard on its merits.

[11] There is, however, no basis whatsoever for those costs to be on anything other than a partial indemnity basis. None of the applicable triggers for an elevated scale of costs (see: Davies v. Clarington (Municipality), 2009 ONCA 722, at para. 31; T.A.W. v J.C.L., 2021 ONCA 270, at para. 4) applies here; at least, none that should benefit the applicants.

[12] Respecting quantum, to characterize as excessive the applicants’ claimed counsel rate and the time spent would be to grossly understate the issue. The expenditure of 124 hours at an hourly rate of $525.00 on an exceedingly uncomplex and uncomplicated application is, in my view, yet another example of the unacceptable excesses that continue to spiral the costs of litigation out of control and put access to justice beyond the reach of all but the wealthiest few.

[13] I am mindful that, in assessing costs, the “overarching objective is to fix an amount of costs that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances of the case, rather than to fix an amount based on the actual costs incurred by the successful litigant” (see: Apotex Inc. v Eli Lilly Canada Inc., 2022 ONCA 587, at para. 61).

[14] I am also mindful that, in exercising my discretion respecting costs, the most important factor to consider is the parties’ litigation conduct (see: Render v ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, at para. 89). The parties’ troubling conduct in this case and the need to deter similar behaviour must factor prominently in my decision on costs.

[15] I have already set out above and in My Endorsement the parties’ baffling disregard of court procedure and judicial direction throughout this matter. Despite the clear exhortation at para. 9 of My Endorsement that the parties’ blissful ignorance of this court’s procedural requirements “would best be brought to an immediate and complete end”, the parties instead elected to doggedly maintain their wilful nescience. Borrowing from the costs decision of Trimble J. in Yim et al. v Song et al. (April 6, 2016), Brampton CV-13-5248-0000 (ON SC), at para. 7, the parties have learned nothing and forgotten nothing, which is, at the same time, both astounding and not.

[16] There is certainly enough culpability to go around; however, between the two sides in this case, the respondent’s conduct is the worse. In addition to the misconduct to which I have already referred, the respondent’s counsel wrote to me on June 9, 2023 in a completely improper attempt to re-litigate part of the application. Were that not enough, her said correspondence misrepresented what occurred during the May 29, 2023 hearing. I already dealt with that improper communication in a separate endorsement (the content of which need not be reproduced here), but same is relevant to the issue of costs.

[17] Taking into consideration the factors set out in rule 57.01(1) of the Rules of Civil Procedure, including, without limitation, the lack of complexity of this application, the experience of counsel, the unreasonable rates charged, the grossly excessive time spent, the reasonable expectations of the unsuccessful respondent and, in particular, the balance of misconduct as between the parties, I find the all-inclusive amount of $25,000.00 to be fair, reasonable and proportionate in the circumstances.

[18] I therefore order that the respondent shall pay to the applicants their costs of this application on a partial indemnity basis, which costs are fixed in the all-inclusive amount of $25,000.00 and payable by no later than July 3, 2023.

C. Chang J. Date: June 26, 2023