COURT FILE NO.: CV-13-00002155-00
DATE: 2023 12 28
SUPERIOR COURT OF JUSTICE – ONTARIO
RE:
THE ESTATE OF SULOCHANA SHANTHAKUMAR by her estate trustee, SANTHA KUMAR MYLABATHULA, Plaintiff
AND:
ROYAL BANK OF CANADA, GURRAPPADI, Siva, SYKES, William, RADHAKRISHAN, Usha, WILSON, Sheila, ATTORNEY GENERAL OF CANADA, CARVER, Phillip, YANG, Albert, and THE ATTORNEY GENERAL FOR THE PROVINCE OF ONTARIO, Defendants
BEFORE:
Regional Superior Justice L. Ricchetti
COUNSEL:
CALLAHAN, Peter M., for the Plaintiff
BOWDEN, Gregory W., for the Defendants (ROYAL BANK OF CANADA; GURRAPPADI, Siva; SYKES, William; RADHAKRISHAN, Usha and WILSON, Sheila)
WATT, Karen for the Defendants (ATTORNEY GENERAL OF CANADA, CARVER, Phillip and YANG, Albert)
HEARD:
In Writing.
COST ENDORSEMENT
(On Motion to Strike and Summary Judgment Motion)
[1] By written reasons dated October 27, 2023, this court dismissed the Plaintiff’s action. The Defendants were awarded costs of the action.
[2] The parties were given an opportunity to make written submissions on the issue of costs. All parties filed written cost submissions.
The Position of the Parties
[3] The Defendants, the Attorney General of Canada, Phillip Carver and Albert Yang (the AG Defendants), seek costs of the action in the amount of $53,345.13 on a partial indemnity basis and $72,125.55 on a substantial indemnity basis.
[4] The Royal Bank of Canada, Siva Gurrappadi, William Sykes, Usha Radhakrishan and Sheila Wilson (the RBC Defendants), seek costs of the action, on a substantial indemnity basis of $163,000.
[5] The Plaintiff submits that costs to the Defendants for the motion and the action be fixed at $1,500.
Analysis
[6] I accept the submission by the Plaintiff that reference to what costs were awarded to the Plaintiff in another separate, distinct, legal proceeding has no bearing on the scale or quantum of costs to be awarded in this case. I am not prepared to embark upon an analysis to determine the similarities, differences, issues, amount of work done between that separate proceeding and this proceeding before determining if it provides any assistance in fixing costs in this action.
[7] It is difficult to accept the Plaintiff’s submissions when it submits that the Defendants’ costs of the motion and the action (this 10-year-old action with numerous hearings, motions, conferences and this summary judgment motion) be fixed at $1,500.
[8] I reject the Plaintiff’s submission that the Estate “ought not to be penalized” because Ms. Shanthakumar passed away mid-proceeding. It became the responsibility of the Estate Trustee to assess the merits of this outstanding claim and determine whether to proceed with it. Having proceeded with this claim, the Estate Trustee cannot avoid the consequences of his decision to proceed with this claim – which he pursued vigorously for many years.
[9] The same can be said for the Estate Trustee’s decision to proceed with the defamation claim despite Ms. Shanthakumar’s death. Represented by counsel, the Estate Trustee should have realized that such a claim was not maintainable after Ms. Shanthakumar’s death. Nevertheless, the Estate Trustee pursued this claim right through to and at the summary judgment motion.
[10] The AG Defendants set out the amount for both substantial and partial indemnity but make no submissions why a punitive award of substantial indemnity costs be awarded. I am satisfied that costs on a partial indemnity basis are appropriate for the AG Defendants in these circumstances.
[11] The RBC Defendants seek costs on a substantial indemnity basis.
[12] A substantial indemnity cost award is a punitive cost award by the court. Generally, such awards are only granted where the court finds the opposing party’s conduct has been reprehensible, scandalous or outrageous.
[13] I am persuaded that the RBC Defendants have met their onus to establish that a punitive cost award should be ordered in these circumstances. I accept that:
• There was a long tortuous history to this proceeding such as the administrative dismissal, the hearings on the Plaintiff’s choice of a litigation guardian (which was disputed), removal of that litigation guardian and, eventually, the appointment of the OPGT, only to have the Plaintiff die before the action could move ahead.
• Extremely lengthy delays by the Plaintiff (for example moving 4 years after the action had been dismissed).
• The Plaintiff moving to set aside the dismissal, where the Plaintiff was incapable of being examined for discovery, and not disclosing this significant factor to the court when seeking to set aside the dismissal.
• Unnecessary motions brought on by the Plaintiff such as the Plaintiff paying the outstanding cost awards, on the eve of the motion to strike the Plaintiff’s pleading because of that failure to pay the outstanding cost awards.
• Lengthy delays by the Plaintiff in moving forward with the examinations for discovery.
• Lengthy delays by the Plaintiff in answering undertakings, necessitating motions.
• The morning of the summary judgment motion, the Plaintiff’s concession, for the first time, that some of the causes of actions could not be maintained (despite the passage of 10-year litigation) and were being abandoned.
[14] These issues and others are set out in the numerous reported decisions in this action.
[15] All of the above factors are, in my view, to warrant a punitive cost award of substantial indemnity for the entire action and the motion to the RBC Defendants.
[16] There are no R. 49 Offers to Settle in play. The Plaintiff’s Offer to permit the filing of the Amended, Amended Statement of Defence becomes irrelevant given this court’s decision to dismiss the action in its entirety.
[17] In addition to the above factors:
• The issues were complex.
• The issues were important particularly, given the amount claimed against the defendant corporations AND individuals.
• Substantial punitive damages were claimed against the defendants.
[18] The Plaintiff submits that no “true” Bill of Costs was produced. Essentially, all that was produced was a Cost Outline, with no detailed breakdown of hourly legal work performed. The Plaintiff did ask for a “true” Bill of Costs. None was forthcoming. I accept this submission.
[19] This court cannot properly fix costs, which is to be fair and reasonable in the circumstances, when the Bill of Costs simply set out a total hours and hourly rates. For example, GWB spent approximately 100 hours “communicating” with client/opposing counsel and “other”. It is impossible to determine whether this amount of time was reasonable or fair in the circumstances. In another example, GWB spent approximately 108 hours on 10 conferences.
[20] The AG Defendants filed the exact same type of “Bill of Costs”.
[21] While dockets are generally not necessary, in this case, dockets would have provided some explanation for the time spent throughout the action to assist to arrive at fixing a reasonable amount of costs for both sets of defendants.
[22] The Plaintiff also raises the issue that the RBC Defendants counsel’s hourly rates appear to have been the same for the past 10 years, which is highly unlikely, and using the current hourly rate is simply inappropriate and wrong. I agree.
[23] Such perfunctory “Bills of Costs” do not permit this court to easily fix a fair and reasonable amount of costs of the action. It is easier to fix fair and reasonable costs of the summary judgment motion given the court’s review of the materials and the hearing before it.
[24] So, what is a fair and reasonable cost award in these circumstances? To do so, I am mindful that, at many (but not all) of the motions, costs were awarded so that those discreet events must be excluded in determining fair and reasonable costs of the action. At many of the conferences, costs were not dealt with.
[25] Pleadings were exchanged. The Plaintiff filed an Amended and later sought to file an Amended Amended Statement of Claim. Pleadings therefore resulted in additional legal time to review and respond.
[26] Affidavit of Documents were exchanged. There were numerous documents. There were productions from the criminal proceedings, which complicated matters.
[27] Examinations for discovery were completed but only after extensive issues had to be resolved.
[28] Many case management conferences were held.
[29] The action took approximately 10 years to get to this stage.
[30] The motion to strike/summary judgment was a very complex motion, involving numerous legal issues, extensive materials, factums and lengthy submissions.
[31] On a substantial indemnity basis for the RBC Defendants and partial indemnity basis for the AG Defendants, I am satisfied that, for the summary judgment motion:
a) $3,000 for the legal fees AG Defendants is reasonable given the discreet portion of its Bill of Costs. 13 hours for the summary judgment motion was fair and reasonable. I will deal with disbursements as part of the costs of the action.
b) $20,000 for the legal fees of the RBC Defendants for the motion is reasonable. These Defendants took the lead on the motion, in their materials and in the submissions. Approximately 75 hours is a reasonable amount to spend on such a motion. I will deal with the disbursements as part of the costs of the action.
[31] I turn now to the costs of the action on the same scale of costs as the summary judgment motion costs.
[32] Considering the above comments on the extensive pleadings required, productions, discoveries, conference hearings, a fair and reasonable amount for legal fees is:
a) For the AG Defendants, the sum of $20,000 on a partial indemnity basis; and
b) For the RBC Defendants, the sum of $75,000 on a substantial indemnity basis.
[33] I have no reason or basis to reduce the disbursements sought.
Conclusion
[34] The Plaintiff shall forthwith pay to the AG Defendants, the sum of $23,000 plus HST plus $4,548.26 for disbursements.
[35] The Plaintiff shall forthwith pay to the RBC Defendants, the sum of $95,000 plus HST plus $9,986.70 for disbursements.
[36] Interest shall accrue on any unpaid cost award at the rate of 7% per annum.
Released: December 28, 2023 RSJ L. Ricchetti
COURT FILE NO.: CV-13-00002155-00
DATE: 2023 12 28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: THE ESTATE OF SULOCHANA SHANTHAKUMAR by her estate trustee, SANTHA KUMAR MYLABATHULA
-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 PROVICE OF ONTARIO
COUNSEL: P. Callahan, for the Plaintiff
G.W. Bowden, for the Defendants, Royal Bank of Canada, Siva Gurrappadi, William Sykes, Usha Radhakrishan and Sheila Wilson
K. Watt, for the Defendants, Attorney General of Canada, Phillip Carver and Albert Yang
COST ENDORSEMENT
(On Motion to Strike and Summary Judgment Motion)
RSJ L. RICCHETTI
Released: December 28, 2023