Court File and Parties

Newmarket Court File No.: CV-19-140486-00 Date: 2024-01-29 Superior Court of Justice - Ontario

Re: Dr. Nataraj Chettiar, Plaintiff (Defendant by Counterclaim) And: Kuen Mui, Defendant (Plaintiff by Counterclaim)

Before: The Honourable Madam Justice A.A. Casullo

Counsel: Jason R. Allingham, Counsel, for the Plaintiff (Moving Party) Elena Elnaz Mazinani, Counsel, for the Defendant (Responding Party)

Heard: In Writing

Ruling on Costs

Overview

[1] On December 4, 2023, I released my Ruling dismissing the plaintiff’s motion for summary judgment.

[2] While I did not invite submissions on costs at the conclusion of the hearing, I did confirm that the defendant would be entitled to her costs, barring any offers to settle.

[3] I did not have the benefit of the defendant’s Bill of Costs on Caselines, but I did set out what I thought to be an important consideration when a trier is considering costs – the amount of costs that an unsuccessful party could reasonably be expected to pay in relation to that particular step in the proceeding: see r. 57.01(1) (0.b) Rules of Civil Procedure, R.R.O. 1990, Reg. 194. This is determined by a review of the unsuccessful party’s Bill of Costs.

[4] I did review the plaintiff’s Bill of Costs, and suggested in my Ruling that if I were to make a costs award based on the written record alone, it would be in the vicinity of $7,000. I then invited counsel to come to an agreement on costs. If they were unable to do so, I would receive written submissions.

[5] I have now reviewed the written submissions of both parties, including all Bills of Costs. The issues, and the outcome, were very important to both the plaintiff and the defendant. Neither side seeks an extraordinary award in costs. Counsels’ hourly rates are reasonable.

[6] The defendant seeks her costs on a substantial indemnity basis in the amount of $71,977.75, or $48,884 on a partial indemnity basis.

[7] The defendant submits that she is entitled to an award of substantial indemnity costs, given that it was unreasonable, in all of the circumstances, for the plaintiff to bring his motion for summary judgment. I am not persuaded that the plaintiff’s conduct was reprehensible or so outrageous that an award of costs on a substantial indemnity basis is warranted. Accordingly, I will consider awarding costs on a partial indemnity basis.

[8] That said, I am persuaded that I miscalculated the amount the plaintiffs would have sought for the summary judgment motion. While I initially thought the figure to be $7,000, upon closer review I see it is $72,718. The plaintiff’s Bill of Costs was very helpfully divided into separate categories, and I mistakenly looked only at the category that addressed the preparation for and attendance at the motion.

[9] The plaintiff submits that the costs of the motion should be reserved to the trial judge. In the alternative, if I am not inclined to so order, the plaintiff submits that an appropriate award of costs is $7,000 to reflect only the costs of arguing the motion, given that the balance of the materials and transcripts can be used for trial. Further, his view is that it was reasonable to bring the summary judgment motion in light of what he perceived to be the lack of a genuine issue requiring a trial.

[10] The plaintiff is a sophisticated businessman. I trust he conducted a cost-benefit analysis before deciding to bring his motion. Indeed, had he had enjoyed success he would have recovered in the vicinity of $800,000.

[11] Along with hoping for success, one must also accept the risks of a strategic litigation decision.

[12] Accordingly, costs of the motion are awarded to the defendant in the amount of $40,000, all inclusive, on a partial indemnity basis.

Casullo J. Date: January 29, 2024