Omer S. Chaudhry

The defendant sought costs arising from a case conference made necessary after the parties failed to comply with a court-ordered timetable for advancing the litigation.

The plaintiff had failed to serve and file an amended statement of claim within the required time, resulting in delays, unnecessary correspondence between counsel, and the cancellation of a scheduled pre-trial conference.

The court found the delay primarily attributable to the plaintiff and his counsel, and also criticized uncivil communications between counsel which contributed to wasted steps and increased costs.

The court held the defendant was entitled to wasted costs incurred due to the plaintiff’s non-compliance with the timetable.

The court fixed costs at $4,909.85 and directed further steps to determine whether some or all of those costs should be paid personally by the plaintiff’s counsel under Rule 57.07.

The plaintiffs, Nashaat and Taghreed Aly, claimed a partnership interest in a family grocery business, Nader Halal, operated by Adel Tohamy.

The court found a valid oral agreement from 2001 granting the Alys a 20% interest.

In a related family law application, Adel's former wife, Naiema, sought to set aside two separation agreements that released her claims to the family businesses and spousal support.

The court set aside both agreements under s. 56(4) of the Family Law Act due to Adel's deliberate failure to disclose significant assets, unconscionability, and duress.

The court also found the defendants engaged in spoliation of evidence by destroying financial records and ordered the appointment of a receiver over the businesses pending the damages phase of the trial.