Court File and Parties

CITATION: Attorney General of Canada v. Jafari, 2011 ONSC 2334

NEWMARKET COURT FILE NO.: DC-09-00000002-0000

DATE: 20110412

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE ATTORNEY GENERAL OF CANADA, Plaintiff AND: SHAWN JAFARI, Defendant

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL: C.S. Spiteri, Counsel for the Plaintiff J.W. Chidley-Hill, Counsel for the Defendant

HEARD: By Written Submissions

COSTS ENDORSEMENT

[1] On December 22, 2010 I dismissed the Appellant’s motion to set aside an order of the Registrar, which dismissed the appeal for delay.

[2] As the successful party, the Respondent in Appeal (“the Respondent”) seeks costs of the motion before me, as well as costs of the Small Claims Court action.

[3] I decline to deal with the costs of the action for the reason that the Respondent had the opportunity to seek its further costs incurred in dealing with the action as a result of the steps taken by the Appellant after default judgment was signed, on both October 16, 2008 and on December 3, 2008, yet did not do so. If no costs were sought or awarded on those occasions it would be improper for the Divisional Court to now impose costs for such attendances, given that this court did not hear the appeal.

[4] Confining myself solely to the costs of the motion that was before this court, the Respondent has submitted a bill of costs showing that 58.5 billable hours were spent on the appeal. The Respondent should not have been required to spend much, if any, time on the appeal given that it was dismissed for delay. The bill of costs does not particularize the time spent on the appeal as opposed to this motion. The Respondent did have to file materials in response to the motion and a single attendance was necessary for the argument of the motion. If the 58.5 hours were spent on these latter tasks, such an expenditure of time cannot be warranted by the nature of the motion that the Respondent was opposing. Further, it is necessary for me to invoke the principle of proportionality of any cost award, bearing in mind that the judgment that the Appellant sought to appeal was in the amount of $11,109.38. I believe that allocating 18 hours for the preparation and attendance to respond to the motion would be appropriate (18 x $90 = $1,620) plus some amount for disbursements. Again the bill of costs is not clear in setting out which disbursements were incurred solely for the motion, as opposed to the appeal. In the final analysis I find that an award of $1,900 inclusive of HST is appropriate in all of the circumstances.

[5] Accordingly an order shall issue requiring the Appellant to pay to the Respondent its costs of the motion fixed in the sum of $1,900 and payable within 30 days.

HEALEY J.

Date: April 12, 2011