ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-51660
B E T W E E N:
SCOTIA MORTGAGE CORPORATION
Eric M. Appotive, for the Plaintiff
Plaintiff
- and -
MIAN JAVAID HAKIM, YASMIN JAVAID and KHURSHID ANWAR DOST
Mian Javaid Hakim, and Yasmin Javaid, Self-Represented
Lloyd R. St. Amand, for Khurshid Anwar Dost
Defendants
- and –
BASSEM HAJJAR, CHESTERFIELD CANADA INC., SCOTTISH & YORK, AVIVA INSURANCE, AXA INSURANCE CANADA, LLOYD’S UNDERWRITERS A100380, LLOYD’S UNDERWRITERS A100384, JAVOCO INSURANCE COMPANY and OMEGA GENERAL INSURANCE COMPANY
Charles M. Merovitz and Kathleen McDormand, for Bassem Hajjar
Third Parties
HEARD: July 12, 2012
SUPPLEMENTARY REASONS REGARDING COSTS
Aitken J.
Costs
Relief Being Sought
[1] Scotia Mortgage Corporation (“Scotia”) seeks its costs against the Defendants, Mian Javaid Hakim (“Hakim”), Yasmin Javaid (“Javaid”), and Khurshid Anwar Dost (“Dost”), jointly and severally, after it was successful on its motion for summary judgment in regard to all sums owing under a first mortgage granted to Hakim and Javaid and guaranteed by Dost.
[2] Hakim, Javaid, and Dost are seeking costs against the second mortgagee, Bassem Hajjar (“Hajjar”), whose motion for summary judgment to dismiss their third party claims failed.
Scotia’s Costs Claim
[3] Scotia seeks costs of $17,000 inclusive of disbursements and HST for the motion for summary judgment, and a further $19,700 inclusive of disbursements and HST as costs in the overall action. Scotia also seeks a further $7,758 as costs for the period between the date of the summary judgment motion and the appearance on July 12, 2012.
[4] Hakim and Javaid are not disputing the hourly rates charged by Scotia’s counsel; however, they take the position that costs should not have to be paid until such time as all matters are resolved between the parties to this litigation and it is clear who, ultimately, is responsible for those costs. Dost is not disputing the hourly rates charged by Scotia’s counsel but does argue that considering the significant costs being sought both in regard to the motion for summary judgment and in regard to the overall action, there must be some duplication in the two amounts being sought. Dost also asks that costs not be determined until there has been a trial of the issues arising from the interrelated claims and it is clear who, ultimately, is responsible for costs. Scotia takes the position that its costs were increased due to various defences raised by Dost – none of which I found had any merit. Scotia points out that, in order to properly respond to those defences, it had to search out documents that, in the normal course, Dost should have produced.
[5] The hourly rates included in Scotia’s Bill of Costs are reasonable.
[6] I share the concern of Dost in regard to the costs attributed to the action as a whole. I also find that the overall costs being sought are excessive.
[7] From Scotia’s point of view, the action is relatively simple and straight-forward. It seeks recovery under a mortgage against the mortgagors and the guarantor. The pleadings prepared by Scotia consisted of the Statement of Claim and the Reply to the Defence of Hakim and Javaid. Most of the Statement of Claim is boilerplate and fill-in-the-blanks. Considerably more work had to go into preparation of the motion for summary judgment and accompanying affidavit and exhibits, the factum used on the motion, and the Book of Authorities. Consequently, it makes little sense to me that the Bill of Costs for the action would be greater than that for the motion for summary judgment. I was provided with a summary of where the hours were spent on the motion for summary judgment. I was not provided with any comparable summary of time in regard to the overall action. It is the obligation of any party seeking costs to persuade the Court that the costs claimed are reasonable and proportionate to the amount recovered.
[8] Scotia was the successful party on its motion for summary judgment and in its action and is entitled to costs against the Defendants. That being said, the amount of costs being sought by Scotia is out of proportion to the work required on the file and out of proportion to what the Defendants, reasonably, could have expected as costs on the motion and within the action as a whole.
[9] Under r. 20.06 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, the court may fix and order payment of the costs of a motion for summary judgment by a party on a substantial indemnity basis if the party acted unreasonably by making or responding to the motion or the party acted in bad faith for the purpose of delay. There is no evidence before me that any of the Defendants acted in bad faith for the purpose of delay. The Defendants, Hakim and Javaid, did not waste anyone’s time during this litigation process and have acknowledged from the start the existence, outstanding principal, term, and interest rate of the first mortgage and the fact that it had fallen into arrears. Dost, on the other hand, did make the proceedings more complicated than they otherwise would have been due to his failure to admit the obvious and his assertion of defences that, clearly, were without merit.
[10] Taking these factors into account, costs are awarded against Dost in favour of Scotia in the amount of $10,000 in regard to the motion for summary judgment and $7,500 in regard to the overall action – both amounts being inclusive of disbursements and HST. Of this sum, Hakim and Javaid shall be jointly and severally liable for costs in favour of Scotia in the amount of $2,500 in regard to the motion for summary judgment and $7,500 in regard to the overall action. Furthermore, the Defendants shall be jointly and severally liable to Scotia for a further $3,000 as costs relating to the period from May 3, 2012 to July 12, 2012, inclusive of disbursements and HST. Again, the amount of time charged by Scotia’s counsel exceeds what was reasonable considering the issues to be dealt with on July 12, 2012.
Hakim, Javaid, and Dost’s Costs Claim
[11] Hajjar was unsuccessful on his motion for summary judgment against Hakim, Javaid, and Dost. The costs sanctions applicable for unsuccessful motions for summary judgment under r. 20.06 apply to Hajjar. It should have been obvious to Hajjar that possession of the mortgaged premises at the time of the fire is very much a live issue in this case requiring viva voce evidence at trial. Credibility issues exist. Therefore, in my view, Hajjar acted unreasonably in bringing a motion for summary judgment against Hakim, Javaid, and Dost, and he must reimburse them their costs on a substantial indemnity basis.
[12] Hakim and Javaid did not incur any legal fees in regard to Hajjar’s motion for summary judgment because Hakim is personally representing both of them. To the extent that Hakim and Javaid incurred any disbursements relating to serving and filing materials relating to the motion for summary judgment, Hajjar shall reimburse them upon presentation of receipts or invoices.
[13] Dost seeks his costs on the motion for summary judgment in the amount of $9,103.20 inclusive of disbursements and HST. Hajjar takes the position that aspects of the fees and disbursements associated with Dost’s counsel being at the Court House for argument on Hajjar’s motion for summary judgment are too high. More specifically, concern is raised about the flat fee of $1,800 for attendance at court on the morning of May 3, 2012 and for the cost of two night’s accommodation in Ottawa. The concerns are legitimate, and both sums will be reduced by half. Otherwise, no concerns were raised regarding the hourly rates charged or the hours docketed in the Bill of Costs presented by Dost’s counsel.
[14] Costs are awarded against Hajjar in favour of Dost in the amount of $7,800 inclusive of disbursements and HST.
Staying Enforcement of Summary Judgment and Costs Orders
[15] Under r. 20.08, where it appears that the enforcement of a summary judgment ought to be stayed pending the determination of any other issue in the action or a counterclaim, crossclaim or third party claim, the court may so order on such terms as are just.
[16] Hakim, Javaid, Dost, and Hajjar all ask that the summary judgment order and the costs orders be stayed pending the outcome of the third party litigation, the litigation between Hajjar and various insurance entities, and the litigation between Scotia and various insurance entities. On the evidence presented on the summary judgment motions, it is clear that claims against those insurance entities for negligent misrepresentation and/or breach of contract loom large in the background of this litigation.
[17] Scotia urges me not to stay any of the orders, arguing that, by not allowing Scotia to collect what is owing to it right away, the Court may be jeopardizing Scotia’s ability to collect under its judgment. It urges the Court not to be concerned about the financial position of the guarantor, Dost, because he earns a good living as a pharmacist and he owns many properties. That assertion also supports the conclusion that Scotia will likely have no difficulty collecting what is owing to it from Dost – even if execution is put on hold pending the conclusion of the sister litigation.
[18] The most compelling reason not to suspend execution under Scotia’s summary judgment is to keep to a minimum the sums owing to Scotia by the Defendants pursuant to the terms of the mortgage. Ultimately, this goal outweighs other considerations. Upon Scotia receiving payment for the sums owing to it under the summary judgment order and costs order, Scotia shall assign to the Defendants its rights in the litigation against the insurance companies/brokers/agents and shall cooperate fully in providing all relevant disclosure, witness statements, and testimony as and when called upon to do so.
[19] There is no reason to suspend enforcement of the costs order against Hajjar in regard to his motion for summary judgment in that the costs order is meant to indemnify the Defendants for the extra cost to which they have been put responding to Hajjar’s unsuccessful motion. This is a separate issue from any costs relating to the overall action.
[20] All requests to temporarily stay enforcement of the summary judgment and costs orders are rejected.
Aitken J.
Released : July 17, 2012
COURT FILE NO.: 11-51660
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: SCOTIA MORTGAGE CORPORATION Plaintiff - and – MIAN JAVAID HAKIM, YASMIN JAVAID and KHURSHID ANWAR DOST Defendants - and – BASSEM HAJJAR, CHESTERFIELD CANADA INC., SCOTTISH & YORK, AVIVA INSURANCE, AXA INSURANCE CANADA, LLOYD’S UNDERWRITERS A100380, LLOYD’S UNDERWRITERS A100384, JAVOCO INSURANCE COMPANY and OMEGA GENERAL INSURANCE COMPANY Third Parties
SUPPLEMENTARY REASONS REGARDING COSTS
Aitken J.
Released : July 17, 2012