Court File and Parties

COURT FILE NO.: CV-19-612128 WRITTEN COSTS SUBMISSIONS FILED: 20201127 COSTS ENDORSEMENT RELEASED: 20210301 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

REZA GHALAMGHASH and AZAM HOSSEINI Plaintiffs

- and-

SEYED HAMIDREZA MODARES NEJAD and MOJGAN BAKHTIARI Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: A. Alemi Email: arman@alemilaw.com

• for the Defendants

S. Juzkiw Email: stefan@juzkiw.com

• for the Plaintiffs

COSTS ENDORSEMENT RELEASED: March 1, 2021

Costs Endorsement

I. Background

[1] By Order and Endorsement dated November 10, 2020, I granted the Plaintiffs leave to amend their Statement of Claim. The motion was unopposed by the Defendants except on the issue of costs.

[2] The Defendants seek costs of $17,396.25 on a substantial indemnity scale or in the alternative, $13,917 on a partial indemnity scale. The Plaintiffs seek costs in the amount of $1,920 on a partial indemnity scale.

II. The Law and Analysis

[3] Subject to the provisions of an Act or the Rules, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid (s. 131(1), Courts of Justice Act (Ontario)). In exercising this discretion, in addition to the result and any offer to settle made in writing, the court may consider the factors set out in Rule 57.01(1).

[4] The overriding principles in determining costs are fairness and reasonableness (Boucher v. Public Accountants Council for the Province of Ontario, (2004), 71 O.R. (3d) 291 (C.A.); Deonath v. Iqbal, 2017 ONSC 3672 at paras. 20-21). The general rule is that costs on a partial indemnity scale should follow the event which should only be departed from for very good reasons such as misconduct of the party, miscarriage in procedure or oppressive or vexatious conduct (1318706 Ontario Ltd. v. Niagara (Regional Municipality) (2005), 75 O.R. (3d) 405 (C.A.); 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 at paras. 10, 12-14). Rule 1.04(1) and proportionality are also applicable.

[5] This motion was not determined on its merits, therefore, costs cannot be awarded based on the result and the parties’ relative success. However, I am satisfied that the Defendants are entitled to some costs given the Plaintiffs’ conduct which unnecessarily lengthened the proceeding and unnecessary steps taken by the Plaintiffs (Rule 57.01(1)(e)(f)).

[6] It is not necessary or useful to chronicle all of the exchanges between counsel and the steps taken over 18 months before the parties attended before me on November 10, 2020, many of which are irrelevant to the issue of costs. Plaintiffs’ counsel first raised the issue of amending the Statement of Claim on May 13, 2019 given that the Plaintiffs drafted it while self-represented. The Defendants would not consent to the amendments unless the Plaintiffs agreed to pay costs thrown away. The Plaintiffs took the position that the parties should bear their own costs. After 15 months of intermittent correspondence between counsel with respect to a timetable for the action, the Plaintiffs did not raise the amendment again until August 7, 2020. This time, given the delay, the Defendants would not consent to the amendment unless the Plaintiffs agreed to a strict timetable.

[7] At a Chambers appointment on September 15, 2020, Speigel J. ordered a timetable for the action on consent which required the Plaintiffs to forward their proposed Amended Statement of Claim by September 21, 2020 with any motion for leave to amend to be heard by October 23, 2020. The Plaintiffs delivered a Fresh as Amended Statement of Claim on September 21, 2020 and the motion for leave to amend was scheduled for October 22, 2020. However, Plaintiffs’ counsel failed to confirm the motion and it did not proceed. The motion was re-scheduled for November 10, 2020. In the interim, counsel attended another Chambers appointment before Schabas J. on November 3, 2020 who made the November 10 motion date peremptory on the Plaintiffs and directed that costs thrown away, if any, be addressed on November 10.

[8] I am satisfied that the Plaintiffs received an indulgence with respect to the amendments and caused the Defendants to incur both costs thrown away and unnecessary costs. In my view, the Defendants are entitled to some costs related to the amendment, the Chambers appointments, costs thrown away of the non-confirmed motion and the attendance before me. I cannot conclude that the conduct of the Plaintiffs, largely related to delay and inadvertence, rises to the level of abusive, reprehensible or egregious so as to call for costs on a substantial indemnity scale (Standard Life Assurance Co. v. Elliot, [2007] O.J. No. 2031 (S.C.J.) at paras. 9-10; Dyke v. Metropolitan Toronto Condominium Corporation No. 972, 2015 ONSC 2022 at para. 10).

[9] The main issue here is the quantum. I am not satisfied that the amount sought and the hours claimed by the Defendants are fair, reasonable, proportionate or reflective of the reasonable expectations of the parties. As the Defendants acknowledge in their costs submissions, other than increasing the amount of damages, “the amendments did not materially change the relief sought or the theory of the Plaintiffs’ case”. This must be reflected in the costs awarded to the Defendants arising from the indulgence and costs thrown away for amendments to their pleadings and other additional steps.

[10] Given the Plaintiffs’ delay, I accept that it was reasonable for the Defendants to claim some costs incurred for their efforts in joining the pleadings motion as part of a larger timetable for the action. However, I do not accept that it is reasonable or proportionate to claim a total of 65.7 hours in the circumstances. Even if there had been a full timetable or discovery plan motion, this amount is disproportionate in the circumstances. As one example, the Defendants’ claim for 6 hours to update their costs submissions to reflect the Endorsement of Schabas J. from the November 3 Chambers appointment is unreasonable. It also appears that the Defendants are trying to recover costs which did not result from the conduct of the Plaintiffs on this motion but are costs they would have incurred as part of the litigation in any event. This includes 8 hours for organizing and indexing supporting material for discovery and 6 hours drafting their Affidavit of Documents.

[11] Having reviewed the Costs Outlines and considered all of the relevant factors, including the parties’ respective offers to settle the motion, I conclude that it is fair and reasonable in all of the circumstances and within the reasonable expectations of the parties for the Plaintiffs to pay costs to the Defendants fixed in the amount of $7,000 payable within 60 days.

Costs Endorsement Released: March 1, 2021

Master M.P. McGraw