ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-10-016636
DATE: 20120704

B E T W E E N:

HASSAN SADEGHI

Alexandra Abramian , for the Applicant

Applicant

• and -

MAHBOUBEH MOMENZADEH

Ross Macdonald , for the Respondent

Respondent

HEARD: in writing

MESBUR J

DECISION ON COSTS

Introduction:

Introduction

1The applicant was almost completely successful in the claims he advanced in this action. The only issue on which he did not enjoy success was his claim for return of some jewellery. That said, he did not pursue this aspect of his claim at trial.

2The applicant suggests he should be entitled to costs on a substantial indemnity basis of more than $35,000. The respondent takes the position “this is one of those unusual situations where no costs should be ordered to the successful party.”¹ She takes this position for the following reasons:

a) She says the applicant will enjoy a “windfall profit” of a $360,000 capital growth in the value of the former matrimonial home. She says that this puts the applicant in a “vastly superior financial situation to the Respondent” and it would be “harsh” to impose the costs of the proceeding on her;

b) The applicant was responsible for “confusion and misunderstanding” that gave rise to this lawsuit;

c) The applicant’s mistreatment of the respondent;

d) The applicant’s offer was not an offer of any compromise;

e) The applicant did not achieve in full his offer to settle of August 2011;

f) The applicant resiled from Minutes of Settlement of October 18, 2010;

g) The applicant caused the respondent to incur additional costs by commencing a civil application in Newmarket;

h) The applicant made these proceedings lengthier by going through four separate counsel.

3I accept none of these submissions, with the exception of (e) above. That submission goes to the issue of scale of costs, not entitlement.

Entitlement to Costs

4The applicant did not receive any “windfall” profit. I determined the applicant was the beneficial owner of the former matrimonial home. As a result, there is no “windfall”. As to the “harshness” of imposing costs, the respondent chose to defend this action vigorously, and steadfastly asserted she was a beneficial owner of half the property. She cannot take that position, lose and then expect not to bear the cost consequences of losing.

5I fail to see how the applicant was responsible for confusion and misunderstanding.

6I also fail to see how the applicant’s criminal history has anything to do with the costs disposition of this lawsuit, which was limited specifically to determination of ownership of property.

7The applicant’s offer may not have been a “compromise” position. Nevertheless, it clearly set out his settlement position. The settlement position was clearly reasonable, since it is what he achieved at trial. The respondent was free to accept it, or risk costs if she did not, and the applicant achieved this result at trial. I do not see this as a reason to deprive the applicant of his costs.

8It is true the applicant did not achieve his offer in full. As I have said, this goes to the scale of costs, and not entitlement.

9The Minutes of Settlement specifically gave the applicant the opportunity to consult with counsel before they became binding. He did so, and withdrew from the Minutes pursuant to their terms. This cannot bear on the issue of costs.

10As to the civil proceedings, they were not before me. I assume the costs of those proceedings will be dealt with in due course in Newmarket. They do not inform my costs decision here.

11It is not unusual for parties to change counsel throughout proceedings. I have no evidence of how these changes prolonged the proceedings. I therefore do not consider this ground as a reason to deprive the applicant of his costs.

Quantum of Costs

12Since the applicant did not achieve his offer in full, I cannot see that he is entitled to full recovery costs. His offer required the respondent to return certain jewellery to him. He did not withdraw or amend this aspect of his offer. The terms were not severable. The fact the applicant did not pursue his claim for the return of the jewellery has no bearing on whether the respondent could or should have accepted his offer in full. Since the applicant did not achieve his offer in full, at best, he is entitled to partial recovery costs. This leads me to a discussion of the proper quantum of costs.

13Applicant has delivered a bill of costs on a substantial indemnity basis only. The fees must be reduced to reflect partial indemnity costs only. Given the respective years of call of the various lawyers involved, I would reduce Mr. Waisberg’s fees on a partial recovery basis to $300 per hour, with the same reduction for Ms. Abramian. Both are lawyers with more than 20 years’ experience, and this rate is within the range set by the “Information for the Profession” in the Rules of Civil Procedure regarding costs. Similarly, I would reduce Ms. Kind’s fees to about 75% of her actual rate, namely to $135 per hour and would also I would reduce Ms. Tseitlin’s rate to $200 per hour.

14Respondent suggests that the time spent by applicant’s counsel on trial preparation is excessive. The bill of costs shows a total of about 40 hours of time spent in preparation and legal research. This is in addition to more than 6 hours of additional preparation during the trial. This seems to me excessive for a two day trial. I would reduce the pretrial preparation to a total of 24 hours.

15The respondent points out that there was no order regarding the costs of the trial management conference. That being the case, I decline to award any costs for that attendance.

16When I apply the reduced rates to the reduced hours, the appropriate quantum of costs on a partial recovery basis is $19,000 (rounded) plus disbursements of $1,083.88, plus applicable taxes.

Disposition

17For these reasons, the applicant will have his costs fixed at $19,000 for fees, $1,083.88 for disbursements, plus applicable taxes.

Footnotes

1. 1Respondent’s submissions on costs