Court File and Parties

Court File No.: CV-22-2046-0000 Date: 2024 04 19

Superior Court of Justice – Ontario 491 Steeles Avenue East, Milton ON L9T 1Y6

Re: CIBC Investor Services Inc. carrying on business as CIBC Investor’s Edge, Plaintiff v. Ming Fai Chan, Lai Yang Chang and Henry Ho Chan, Defendants

Before: Justice Conlan

Counsel: R. Aisenberg, for the Plaintiff G. Sidlofsky, for the Defendants

Heard: In Writing

Costs Endorsement

[1] In its decision dated March 20, 2024, CIBC Investor Services Inc. v. Chan, 2024 ONSC 1628, this Court dismissed CIBC’s motion for partial summary judgment.

[2] Unable to agree on costs, the parties have filed written submissions. The Defendants, successful on the motion, request costs on a partial indemnity basis in the total amount of $35,840.00, payable within thirty days. The Plaintiff, unsuccessful on the motion, asks that it be ordered to pay “costs in the cause”. The Plaintiff also takes issue with the quantum of costs being sought by the Defendants and what the Plaintiff characterizes as a costs outline filed on behalf of the Defendants that is “bereft of detail”.

[3] I think that this case is more similar to that decided by Justice Vermette in Nicolardi v. Canadian Tire Corporation, 2021 ONSC 3866, a case relied upon by the successful Defendants, than it is to the two cases relied upon by the unsuccessful Plaintiff – Candiano v. Yakubov, 2018 ONSC 2618 (Copeland J., as Her Honour then was) and Cuming v. Toronto, 2019 ONSC 2486 (Morgan J.).

[4] Neither Candiano, supra nor Cuming, supra involved a motion for partial summary judgment, while Nicolardi, supra and our case did. In my opinion, while there is nothing precluding a judge from exercising their discretion to order costs in the cause after deciding a motion for partial summary judgment, the argument that it would be most fair to do so is generally weaker in such a case because of the risk that the moving party accepted when it brought the motion for partial summary judgment in the face of the prevailing jurisprudence that has, undoubtedly, restricted the availability of the same.

[5] In addition, it should be noted that the said decision of Justice Morgan to order costs in the cause is understandable in that His Honour had dismissed not one motion for summary judgment but two – one advanced by the City of Toronto, a defendant, asking to dismiss the action commenced by the plaintiffs, and the other advanced by The Toronto Terminals Railway Company Limited, another defendant, in its crossclaim against the City of Toronto. His Honour concluded that there were genuine issues requiring a trial in both the main action and in the crossclaim, and in the circumstances of the “double motion”, as His Honour referred to it, discretion was exercised to depart from what His Honour acknowledged would have been the more typical result, namely, partial indemnity costs in favour of the successful party on the motion.

[6] In our case, as Justice Vermette decided in Her Honour’s case, I see no reason to depart from the more normal result that costs on a partial indemnity basis ought to follow the event.

[7] As for the reasonableness of the quantum of costs sought by the successful Defendants, I note that the amount is very similar to what the Plaintiff’s own partial indemnity costs were. The costs outline filed on behalf of the Plaintiff shows a total of $53,810.30 for fees alone, on a full indemnity basis; sixty per cent of that would be more than $32,000.00.

[8] It is not the job of this Court to dissect the costs outline with fine precision where it appears that the quantum of costs being requested is in accordance with what would be just, fair, reasonable, and proportionate, evidenced in part by its congruity with the costs incurred by the Plaintiff itself.

[9] Having said that, I do agree with the Plaintiff’s counsel that it would have been better for the Defendants to have filed a more detailed costs outline, including dockets. Descriptive dockets can be very helpful to a judge in assessing the reasonableness of the amount of costs being claimed by a successful party. Carr v. Ottawa Police Services Board, 2018 ONSC 3094 (Corthorn J.).

[10] I have reduced the amount being claimed by the successful Defendants on account of that lapse. The reduction is somewhat arbitrary, but that cannot be avoided. It amounts to about twenty-five per cent.

[11] This is not a penalty. This is not a criticism of counsel for the Defendants. It is simply a reflection of the Court’s inability to know the details of what was done, when, and by whom.

[12] This Court orders that the Plaintiff shall, within thirty calendar days after April 19, 2024, pay costs to the Defendants in the total amount of $26,880.00.

[13] Finally, unopposed, at the request of the Plaintiff, this Court orders that the title of the proceeding shall be amended to correct the name of Lai Ying Chang.

Released: April 19, 2024 Conlan J.