Court File and Parties

COURT FILE NO.: CV-21-00666973-0000 DATE: 20230704 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LIYA FU, Plaintiff AND: STYROK INC., Defendant

BEFORE: VERMETTE J.

COUNSEL: Tung-Chieh Wu, for the Plaintiff Broghan Masters, for the Defendant

HEARD: In writing

Endorsement as to Costs

[1] On March 17, 2023, I released an endorsement (2023 ONSC 1792) granting the Defendant’s motion for summary judgment.

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

Positions of the parties

a. Position of the Defendant

[3] The Defendant seeks costs on an elevated basis in the amount of $15,000.00. In the alternative, it seeks costs on a partial indemnity basis.

[4] The Defendant’s position is that the Plaintiff’s action was wholly devoid of merit and that elevated costs are appropriate. The Defendant points out that it was entirely successful and argues that the Plaintiff knew or should have known that her action was out-of-time and statute-barred. The Defendant states that, from the outset of the litigation, it made it abundantly clear to the Plaintiff that her action was statute-barred.

[5] The Defendant’s costs outline reflects costs on a partial indemnity basis in the amount of $12,465.12, and costs on a substantial indemnity basis in the amount of $16,984.94. The Defendant submits that the time spent on the motion and its lawyers’ hourly rates are reasonable.

b. Position of the Plaintiff

[6] The Plaintiff argues that each party should bear its own costs of the motion because the nature of the Defendant’s motion was a motion for partial summary judgment and, originally, it should likely not have been allowed to proceed.

[7] In the alternative, the Plaintiff asks that the Defendant be awarded costs on a partial indemnity basis in the reduced amount of $11,080.00.

[8] The Plaintiff’s position is that there are no legal grounds for elevated costs. She submits that she did not act in an abusive, reprehensible or egregious manner, and that she was entitled to raise and argue the issue of discoverability.

[9] The Plaintiff states that the costs claimed by the Defendant are excessive, in particular with respect to the preparation of the notice of motion and motion record and the attendance at the cross-examinations. She argues that the amount of costs claimed by the Defendant on a partial indemnity basis should be reduced to $11,080.00.

[10] The Plaintiff’s costs outline reflects costs on a partial indemnity basis in the amount of $11,235.41, and costs on a substantial indemnity basis in the amount of $12,652.43.

Discussion

a. Entitlement to costs

[11] I reject the Plaintiff’s suggestion that each party should bear its own costs. The Defendant was wholly successful and is entitled to its costs.

[12] The Plaintiff’s position that the parties should bear their own costs is based on the argument that the Defendant’s motion was a motion for partial summary judgment. However, the motion did not proceed as a motion for partial summary judgment. As stated in paragraph 45 of my endorsement dated March 17, 2023, the Defendant agreed that if the Plaintiff’s claim was out of time, then the Defendant’s counterclaim was also out of time. Ultimately, both the claim and the counterclaim were dismissed. I also note that neither the question of the counterclaim nor the issue of partial summary judgment was discussed in the parties’ facta.

b. Scale of costs

[13] 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. This is not such a case. As a result, I find that the appropriate scale of costs is partial indemnity.

c. Quantum

[14] As a general rule of thumb, partial indemnity rates are 60% of full indemnity rates: see James v. Chedli, 2020 ONSC 4199 at para. 14. The partial indemnity rates used for the Defendant’s lawyers slightly exceed 60% of their actual rates. In order to reflect appropriate partial indemnity rates, the costs that the Defendant claims on a partial indemnity basis should be reduced to $11,335.17. [1]

[15] I disagree with the Plaintiff’s submission that the costs claimed by the Defendant are excessive. The hourly rates (as adjusted above) and the time spent are appropriate. In my view, it is very likely that the Plaintiff’s counsel spent more time on the motion than is reflected in the Plaintiff’s costs outline. [2] I also note that the costs claimed by each side on a partial indemnity basis are very similar: the difference between the two is only $1,229.71. This supports the conclusion that the costs sought by the Defendant are within the reasonable expectations of the Plaintiff.

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 Defendant is on a partial indemnity basis in the all-inclusive amount of $11,335.00. The costs are to be paid by the Plaintiff to the Defendant within 30 days.

Vermette J. Date: July 4, 2023

[1] I note that the partial indemnity rate used for the Plaintiff’s lawyer substantially exceeds 60% of his actual rate (i.e., it represents 80% of his actual rate). Using an appropriate partial indemnity rate, the Plaintiff’s costs on a partial indemnity basis total $8,637.54.

[2] I note, among other things, that a round number – 30 hours – is said to have been spent by the Plaintiff’s lawyer on client interviews, research, factum drafting, preparation of book of authorities and preparation for the motion. I also note that the preparation of the Plaintiff’s affidavit is not mentioned in the costs outline.