COURT FILE NO.: 96/03 and 97/03
DATE: 20030221
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
KEYVAN RASEKHI NEJAD, MALIHE SHALI, KOMEIL; RASEKHI NEJAD a minor under the age of 18 years by his Litigation Guardian KEYVAN RASEKHI NEJAD, and SOHEIL RASEKHI NEJAD a minor under the age of 18 years by his Litigation Guardian KEYVAN RASEKHI NEJAD
Plaintiffs
- and -
THOMAS VOLPE and THE GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA
Defendants
Andrew C. Dekany, for the Plaintiff Keyvan Rasekhi Nejad
Mohamed Muslim (previous counsel)
Mark Baker, for the Defendant Thomas Volpe
Alan L. Rachlin, for the Defendants, General Accident Assurance Company of Canada
HEARD: February 21, 2003
BENOTTO J.: (Orally)
[1] This is a motion for leave to appeal the costs order of Madam Justice Himel who ordered costs be paid by the plaintiff (the appellant in this case) as a term of the adjournment he sought.
[2] Mr. Rasekhi Nejad was here in person today with two lawyers: his former lawyer Mr. Muslim and his new lawyer Mr. Dekany. Mr. Dekany requested an adjournment so that a copy of the transcript taken before Justice Himel could be obtained. Mr. Muslim and Mr. Rasekhi Nejad and all counsel who were present before Justice Himel agree that as a term of the adjournment of the trial the plaintiff pay costs thrown away of $2,500 to Mr. Volpe and $3,000 to The General Accident Assurance Company.
[3] The record disclosed that the action arose out of a motor vehicle accident that occurred about nine years ago. On November 18th, 2002, the case came before Mr. Justice Pitt as the original trial date. The plaintiff asked for an adjournment. Justice Pitt granted the adjournment on terms that:
(i) the trial was peremptory to the plaintiff;
(ii) the plaintiff pay costs thrown away as follows: $2,500 to Mr. Volpe and $3,000 to General Accident Assurance.
[4] These costs have not been paid.
[5] The matter came before Madam Justice Himel on January 22, 2003 at Trial Scheduling Court. When a further adjournment was sought by the plaintiff, she booked a time on January 27th to hear submissions with respect to the adjournment and directed the plaintiff to appear with a lawyer. After hearing argument Madam Justice Himel granted the adjournment on terms that the plaintiff pay costs thrown away in the amount of $2,500 to Mr. Volpe and $3,000 to General Accident.
[6] To grant a further adjournment on these facts today would not be in the interest of justice. Four lawyers are here, and all agree as to the narrow issue. (Due to the nature of the argument I am hesitant to award terms of the adjournment). The motion must proceed.
[7] The appellant's notice of appeal sets out the grounds as follows:
(i) that there appears good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that leave to appeal should be granted; and
(ii) no prejudice would accrue to the defendants by extending the time for bringing this motion.
[8] Today it is argued by Mr. Dekany that the client is impecunious. There is no evidence with respect to this except for the bald description in his affidavit that he "was unable" to make the payments. In that he is referring to the payments of costs ordered by Mr. Justice Pitt and presumably the further costs order in the same amount ordered by Justice Himel.
[9] Madam Justice Himel had before her an order that the trial proceed peremptorily to the plaintiff and an order for costs that had not been paid. It was within her discretion to grant such further terms as she sought fit at that time. The granting of leave with respect to costs should be given very sparingly. Particularly when those costs are ordered as a term of the adjournment.
[10] In light of the long history here, there are no grounds that I find that Justice Himel erred in the exercise of her discretion. Leave is therefore not granted.
[11] Mr. Rasekhi Nejad confirmed to me today that Mr. Muslim was no longer representing him in light of the fact that both counsel were here there was some confusion. For purposes of the record it was confirmed to me by Mr. Nejad that henceforth he would be representing himself and that counsel Mr. Baker and Mr. Rachlin could consider that an order has been granted to that effect and it is so ordered.
[12] Costs to be paid forthwith as follows: $2,000 to General Accident, $1,000 to Mr. Volpe.
BENOTTO J.
Date of Reasons for Judgment: February 21, 2003
Date of Release: March 6, 2003
COURT FILE NO.: 96/03 and 97/03
DATE: 20030221
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
KEYVAN RASEKHI NEJAD, MALIHE SHALI, KOMEIL; RASEKHI NEJAD a minor under the age of 18 years by his Litigation Guardian KEYVAN RASEKHI NEJAD, and SOHEIL RASEKHI NEJAD a minor under the age of 18 years by his Litigation Guardian KEYVAN RASEKHI NEJAD
Plaintiffs
- and -
THOMAS VOLPE and THE GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA
Defendants
ORAL REASONS FOR JUDGMENT
BENOTTO J.
Date of Reasons for Judgment: February 21, 2003
Date of Release: March 6, 2003