Court File and Parties

Court File No.: CV-23-00000030 (Woodstock)
Date: 2025-04-02
Court: Ontario Superior Court of Justice

Between:
Victoria Adeniji, Plaintiff
– and –
Saleha Maqbool and Rajvir Jhutty, Defendants

Appearances:
Gregory P. Weedon, for the Plaintiff
Obaidal Hoque, for the Defendants

Heard: In writing

Costs on Summary Judgment
Justice B.A. MacFarlane

Overview

[1] The Plaintiff was granted summary judgment in this matter as per my endorsement released January 24, 2025 in the amount of $256,208.54, plus pre-judgment interest. The parties were invited to make submissions on costs in the event there was no agreement. This is my endorsement on costs.

[2] This matter involved a failure by the Defendant to complete a real estate transaction approximately three years ago. The Plaintiff commenced this action on March 6, 2023 and the Defendants entered a defence on September 1, 2023. The Plaintiff’s Summary Judgment Motion Record was served on the Defendant with an initial returnable date of July 18, 2024. A Certificate of Readiness of Special Appointment was filed in February 2024.

[3] At an appearance on February 9, 2024, the Honourable Justice Bezaire issued a consent endorsement setting out a timetable for the steps required for the summary judgment motion. The Defendant served responding materials and the Plaintiff cross-examined one of the defendants. The motion was adjourned to August 30, 2024. Both parties filed supplementary materials prior to the hearing on August 30, 2024.

[4] In her submissions, the Plaintiff seeks costs of the action on a partial indemnity basis in the sum of $14,826.89, plus taxes of $1,927.50 and disbursements of $2,976.01 (inclusive of taxes) for the total sum of $19,730.40. The Plaintiff’s actual (full indemnity) amounts to $28,018.22.

[5] The Defendants submit that the costs are excessive and disproportionate and that reasonable costs should be fixed at $8,000, all inclusive. According to the Defendants’ Bill of Costs, the actual legal fees of the Defendants is $10,755, plus tax of $1,298.15 for a total amount of $12,153.15.

Law

[6] The court's discretion to award costs, by whom and to what extent they are payable, arises from section 131(1) of the Courts of Justice Act, RSO 1990, c C.43.

[7] The factors which the court should consider when exercising its discretion under s.131 are set out in Rule 57 of the Rules of Civil Procedure, RRO 1990, Reg 194. In addition to the result in the proceeding and any offer to settle or to contribute made in writing, the following non-exhaustive factors include:

• (0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
• (0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
• (a) the amount claimed and the amount recovered in the proceeding;
• (b) the apportionment of liability;
• (c) the complexity of the proceeding;
• (d) the importance of the issues;
• (e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
• (f) whether any step in the proceeding was,
  • (i) improper, vexatious or unnecessary, or
  • (ii) taken through negligence, mistake or excessive caution;
• (g) a party’s denial of or refusal to admit anything that should have been admitted;
• (h) whether it is appropriate to award any costs or more than one set of costs where a party,
  • (i) commenced separate proceedings for claims that should have been made in one proceeding, or
  • (ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer;
• (h.1) whether a party unreasonably objected to proceeding by telephone conference or video conference under rule 1.08; and
• (i) any other matter relevant to the question of costs.

R.R.O. 1990, Reg. 194, r. 57.01(1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4(1); O. Reg. 575/07, s. 1; O. Reg. 689/20, s. 37.

(2) The fact that a party is successful in a proceeding or a step in a proceeding does not prevent the court from awarding costs against the party in a proper case. R.R.O. 1990, Reg. 194, r. 57.01(2).

Application of Legal Principles

[8] In Youkhana v. Pearson, 2024 ONSC 3184; [2024] O.J. No. 2514, at paras 6 and 7, Trimble J. summarized legal principles applicable in awarding costs:

[6] In Tri-S Investments Limited v. Vong, [1991] O.J. No. 2292 (Gen. Div.), page 6, the Court said that the court’s function when fixing costs is not to second guess successful counsel on the time that should or could have been spent to achieve the same result, unless the time spent is so grossly excessive as to be obvious overkill.

[7] In making this assessment, the following legal principles apply:

a) Costs awards as between litigants have a number of purposes, including to a) indemnify (partly) successful litigants, b) encourage settlement, c) correct behaviour of the parties, and d) discourage frivolous or ill-founded litigation (see 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, at para. 10).

b) Generally costs should follow the event (see Bell v. Olympia & York Developments Ltd.), be proportional to the issues in the action and the outcome, and be reasonable for the losing party to pay, all circumstances considered (see Boucher v. Public Accountants Council for the Province of Ontario, and Moon v. Sher et al.).

c) Conduct of the parties is also relevant where it deserves sanction (see Davies v. Clarington (Municipality), 2009 ONCA 722). One party’s playing “hardball” is a relevant factor to consider (see 394 Lakeshore, supra).

d) Costs should be proportional to the issues in the action and amount awarded. Proportionality, however, should not override other considerations, and determining proportionality should not be a purely retrospective inquiry based on the award. It should not be used to undercompensate a litigant for costs legitimately incurred. In Aacurate v. Tarasco, 2015 ONSC 5980 (S.C.J.), McCarthy, J. said:

I am mindful that the principle of proportionality calls upon the court to consider the amount claimed for costs in relation to the amount recovered in the judgment, as well as the reasonable expectation of the parties. In my view, however, proportionality cannot and should not be routinely invoked to save litigants from the actual costs of proceedings in circumstances where those litigants have put forth a wholly unmeritorious defence to a legitimate claim or have caused the proceeding to become unduly prolonged or complicated. The principle should be applied thoughtfully and in a balanced fashion along with the other factors set out in rule 57.01.

e) An undue focus on proportionality ignores principles of indemnity and access to justice (see Gardiner v. MacDonald, 2016 ONSC 2770 (S.C.J.) at para. 65). The trial judge must make an award that is fair and appropriate, overall.

[9] The overarching objective for costs is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”: Zesta Engineering Ltd. v. Cloutier, para. 4; Boucher v. Public Accountants Council for the Province of Ontario, para. 26; and Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722, para. 52.

Disposition

[10] Having considered the factors under rule 57.01(1), specifically the time spent, rates charged, reasonable expectations of the parties, and the Plaintiff's claim and the results achieved, I find the sum of $15,000, inclusive of HST and disbursements, is fair and reasonable in the circumstances of this case.

[11] The Defendants shall pay the Plaintiff the sum of $15,000, inclusive of fees, disbursements and taxes, forthwith.

[12] The Plaintiff shall have the cost award included in the Judgment released on January 24, 2025.

Justice B.A. MacFarlane

Released: April 2, 2025