2252230 Ontario Inc. and Gloria Rajkumar v. Roger Rameshwar Rajkumar

and between Rita Josomatee Rajkumar and 1526381 Ontario Inc. v. Gloria Rajkumar, Superior Independent Medical Assessment Centre Ltd. and Simac Canada Inc.

Court File No.: CV-16-566054
Date of Decision: June 24, 2025
Superior Court of Justice – Ontario

Before: Rohit Parghi

Counsel:

• Gosia Bawolska and Maneka Kaur, for the Plaintiffs/Defendants to the Counterclaim
• Roger Rameshwar Rajkumar, self-represented
• Michael Simaan, for the Plaintiffs by Counterclaim

Heard: June 19, 2025

Costs Endorsement

Background

By Reasons for Decision dated May 13, 2025, I dismissed the action by Gloria Rajkumar and the family trust against Roger Rajkumar, and granted the counterclaim by Rita Rajkumar against Gloria and the Simac companies in the amount of $108,175.00, plus pre-judgment interest. The parties were unable to resolve costs between them. Accordingly, a case conference was convened and submissions provided. I now issue this Endorsement on costs. I will refer to the parties by their first name in the interests of clarity.

Parties' Positions

Rita seeks costs in respect of the counterclaim, on a partial indemnity basis up to the date of her January 8, 2025 offer to settle and on a substantial indemnity basis thereafter. Roger seeks costs in respect of the main action on a partial indemnity basis for the time period during which he had counsel, which was until approximately January 2025. No costs claim is advanced on behalf of Explorer, Roger’s company, which settled the action against it prior to trial.

Legal Framework

In exercising my discretion to fix costs under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, I may consider the factors enumerated in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Those factors include the result achieved, the amounts claimed and recovered, the complexity and importance of the issues in the proceeding, the principle of indemnity, the reasonable expectations of the unsuccessful party, and any other matter relevant to costs.

In Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, para 60, the Court of Appeal for Ontario restated the general principles to be applied when courts exercise their discretion to award costs. The Court held that, when assessing costs, a court is to undertake a critical examination of the relevant factors, as applied to the costs claimed, and then “step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable”.

Application of Principles

Applying these factors here, I note, first, that Roger was entirely successful in the action against him and is therefore entitled to his costs based on the principle of indemnity, for the time period during which he had counsel. He does not seek costs for the subsequent time frame, which includes the trial itself.

Second, Rita was entirely successful on the counterclaim and is therefore likewise entitled to her costs on the counterclaim in light of the principle of indemnity.

Third, Rita issued a Rule 49 offer to settle. The parties do not dispute that Rule 49 is engaged on the facts before me. Rita’s offer was for less than what she was ultimately awarded at trial. In my view, based on the clear language of Rule 49, she is therefore entitled to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

Finally, the amounts Rita and Roger seek are in themselves reasonable. Mr. Simaan’s overall costs, in terms of hourly rates and time spent, are reasonable. His written materials and oral argument at trial were helpful to the court. He did not engage in any conduct that needlessly lengthened the proceedings.

Objection by Gloria Rajkumar

Gloria states that the counterclaim should have been advanced and heard separately from the main action, and that Rita made a “strategic move” to have her claim heard at the same time as the trial. Gloria says Rita is now trying to benefit from that “strategic move” by seeking a larger costs award, on the basis that the main action took longer to try than the counterclaim did.

I do not agree. It was Gloria who involved Rita in the litigation by naming her as a defendant to the main action. Rita counterclaimed. Gloria eventually dropped her claim against Rita. Rita maintained her counterclaim against Gloria. How this amounts to a “strategic move” on Rita’s part is not clear to me. Moreover, at trial, Gloria tried to advance the argument that Rita improperly took Roger’s side over Gloria’s when matters erupted between Gloria and Roger. The allegations in the main action were therefore connected to the defence to the counterclaim.

Quantum of Costs

I now consider the quantum of costs to which Roger and Rita are entitled.

The pre-offer partial indemnity costs are $31,593.63. This number reflects the fees for Roger’s defence to the action (while he had counsel) and Rita’s prosecution of her counterclaim (before she served her Rule 49 offer). Their counsel proposes to discount this number by half to deduct the costs associated with Explorer’s defence, which are not properly recoverable here. I consider this a reasonable approach. I accordingly grant Rita and Roger, together, $15,796.82 in costs on a partial indemnity basis up to the time of trial, and up to the time of the Rule 49 offer, which was also the time frame during which Roger had counsel.

The post-offer substantial indemnity costs amount is $84,817.80. This number reflects Rita’s costs on the counterclaim from the time she served the Rule 49 offer onward. In light of the Rule 49 offer, she is entitled to her costs for this time period on this scale.

Additionally, disbursements, inclusive of HST, are $9,478.27. The disbursements are themselves reasonable and rightly recoverable.

Disposition

I accordingly award costs against Gloria and her companies in the amount of $110,092.89, inclusive of fees, disbursements, and taxes. In my view, this result is fair and reasonable in all the circumstances. This amount is to be paid within 30 days. Counsel may provide me with an order to this effect, which I will then issue.

Date: June 24, 2025

Rohit Parghi