OSHAWA

COURT FILE NO.: FC-05-697
DATE: 20130319

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MEJGANI FAKEIRY, Applicant

AND:

Nasir Fakeiry, Abdul Fakeiry, Shareifa Fakeiry, Shakib Fakeiry and Bamiyan Silver Ltd., Respondents

BEFORE: McDermot J.

COUNSEL:
Gail K. MacRae, for the Applicant

Brian Korb, for the Respondent, Nasir Fakeiry

Barry Rubinoff, for the Respondents, Abdul Fakeiry, Shareifa Fakeiry, Shakib Fakeiry and Bamiyan Silver Ltd.

HEARD: By written submissions

COSTS ENDORSEMENT

[1] I heard several motions on November 15, 2012 resulting from significant delays in the prosecution of these proceedings. On that date, the Respondents Abdul Fakeiry, Shareifa Fakeiry, Shakib Fakeiry and Bamiyan Silver Ltd. (the “Added Respondents”) brought a motion before me to dismiss the Applicant’s claims against them for delay. The Respondent, Nasir Fakeiry (“Nasir”), although previously consenting to the matter proceeding, also moved for dismissal for delay. He further sought a reduction in spousal support. The Applicant brought a motion for disclosure and questioning and Nasir requested disclosure from the Applicant.

[2] Nasir’s motion to dismiss the action and for spousal support was dismissed as was the Applicant’s and Nasir’s motion for disclosure and questioning. The Added Respondents’ motion to dismiss was allowed. The parties were permitted to make submissions as to costs.

[3] The Applicant seeks costs against Nasir. The Added Respondents seek costs against the Applicant for their motion to dismiss. They have also requested costs against the Applicant in respect of an earlier 14B motion brought by the Applicant, which was dismissed by Hatton J. on June 11, 2012. By subsequent endorsement dated June 26, 2012, costs of that motion were “reserved to be dealt with at the next step in the case.”

[4] I will deal with the costs issues in respect of Nasir and the Added Respondents separately.

Costs as between the Applicant and Nasir

[5] Nasir was unsuccessful in his attempt to obtain a dismissal of the claim against him for delay. He proceeded with his motion to dismiss notwithstanding his consent to the matter proceeding provided in March, 2012. Nasir had also asked for a reduction in temporary spousal support and this motion was dismissed because Nasir failed to provide evidence of a change in circumstances since the original spousal support award was made in 2005. Success was divided between Nasir and the Applicant regarding disclosure issues.

[6] No offers to settle were served. No unreasonable conduct was alleged as between Nasir and the Applicant. Although Nasir states that he should be awarded costs because he had success in moving the matter along by service of his motion, that was not his stated intent in his notice of motion in which he requested the Applicant’s application dismissed and a reduction in spousal support. Moreover the history of the matter does not indicate that Nasir was overly interested in moving the matter along until the 14B motion was dismissed; in 2008 Hughes J. gave all of the parties leave to bring any motion “deemed appropriate” but nothing was done until now.

[7] The Applicant is entitled to partial indemnity costs as against Nasir in respect of his motion. She seeks costs of just over $5,000. That appears to be reasonable in light of the costs sought by both Nasir and the Added Respondents. However, the Applicant’s Bill of Costs contained very little detail and it is unclear as to whether the $5,000 is a full indemnity or partial claim. As well, a portion of the affidavit drafted was in respect of the motion brought by the Added Respondents. Finally, this motion did result from the Applicant’s significant delays in moving this matter along.

[8] In the result, I am not going to award the Applicant the full amount of costs that she seeks against Nasir. The Applicant shall have her costs of her motion against Nasir in the amount of $3,500 payable by Nasir within 60 days.

Costs as between the Applicant and the Added Respondents

[9] There are two costs issues before me concerning the Added Respondents. Firstly, there are the costs of the motion heard on November 15, 2012; secondly the costs of the 14B motion as reserved by Hatton J. on June 26, 2012.

Costs of November 15, 2012 Motion

[10] The Added Respondents were completely successful in obtaining a dismissal for delay as requested in their notice of motion. In considering costs under Rule 24(1) of the Family Law Rules,[^1] costs follow the event, and a successful party is presumed to be entitled to costs.

[11] The Applicant states that the Added Respondents were responsible for the delay and that this should mitigate their claim for costs. As well, she states that there was originally a consensus that this matter proceed. The facts, however, do not bear this out. In early 2012 at least, the Added Respondents disagreed that this matter could proceed; this is borne out by the correspondence from Mr. Rubinoff dated June 5, 2012 noted below. Although the Added Respondents did not file an Answer, the Applicant was directed on September 19, 2007 to amend her pleadings and provide particulars of her claim against the Added Respondents. The order of that date stated that the Added Respondents need only file their answer upon those particulars being provided and this was never done. The Added Respondents were entitled to presume that the Applicant was not proceeding with her claim against them, and accordingly, they can hardly be blamed by the Applicant for delaying this proceeding. The presumption under Rule 24(1) has not been displaced and the Added Respondents are entitled to their costs of the November 15, 2012 motion.

[12] The Added Respondents claim costs on a partial indemnity basis of $8,768.69 inclusive of HST and disbursements. A partial indemnity claim is appropriate as no offers to settle were served and no unreasonable conduct is alleged. The case was one of moderate complexity, requiring legal argument and a factum. The hourly rate set out in the bill of costs for Mr. Rubinoff is reasonable as is the solicitor’s time expended on the matter. The Added Respondents shall have their costs of this motion in the amount of $8,768.69 inclusive of HST and disbursements as requested.

Costs of the 14B Motion

[13] The Added Respondents succeeded in obtaining the dismissal of a 14B motion brought by the Applicant to file an Amended Statement of Claim and set a case conference, which would have effectively continued this proceeding notwithstanding the significant delays which had occurred. That 14B motion was filed on June 5, 2012 and dismissed by Hatton J. on June 11, 2012. The material filed by the Added Respondents consisted of a legal assistant’s affidavit which was 16 paragraphs in length. It addressed many of the same issues addressed in the November 15, 2012 motion, and the affidavit convinced Hatton J. that it was inappropriate to have the matter dealt with by way of a 14B motion as that remedy is reserved for uncontested or uncomplicated matters only.

[14] The Added Respondents claim full indemnity costs for this motion in the amount of $3,525.60 inclusive of disbursements and HST. Mr. Rubinoff states that the Applicant’s conduct in bringing a 14B motion to continue the action was unreasonable and he confirmed his position in correspondence dated June 5, 2012 reciting the very reasons the motion was dismissed by Hatton J.; the correspondence indicates that the Added Respondents would be requesting costs under Rule 24(9).

[15] I may generally take into account under Rule 24(11) “the reasonableness or unreasonableness of a client’s behaviour” in assessing the amount of costs. However, the correspondence from Mr. Rubinoff does not give the Applicant the option of withdrawing the motion; by the time of the letter, it was too late for the Applicant to avoid costs through negotiation. Under the circumstances, I decline to find unreasonable conduct or that the correspondence sent by Mr. Rubinoff constituted an offer to settle.

[16] Accordingly, although the Added Respondents are entitled to their costs of the 14B motion as a result of their success, those costs shall be payable on a partial indemnity basis only. Moreover, there is the issue of proportionality; this was a response to a 14B motion and involved a fairly brief affidavit in response. I presume that the contents of that affidavit were later used for and partially duplicated for the materials used in support of the November 15, 2012 motion.

[17] Therefore I find the amount claimed for the 14B motion to be excessive under the circumstances. The Added Respondents shall have their costs for the 14B motion to be paid by the Applicant in the amount of $1,000.

Total Costs Award for Added Respondents

[18] Therefore, there shall be an award of costs against the Applicant in favour of the Added Respondents in the total amount of $9,768.69 inclusive of HST and disbursements. As the costs are in respect of a final order, there need be no terms as to payment of the costs.

McDERMOT J.

Date: March 19, 2013

[^1]: O. Reg 144/99