SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: C-974-09
DATE: 2013-01-25

RE: Attorney General of Ontario, Applicant

and

$138,650 in Canadian Currency (In Rem), Respondent

BEFORE: The Honourable Mr. Justice G.A. Campbell

COUNSEL:
Dan Phelan, for the Applicant

Richard M. Van Buskirk, for Dara Waledkhani, Qamarnaz Amiri,
Golzar Waledkhani, Arman Waledkhani, Loqman Waledkhani and
Ezat Hosseini

HEARD: Written Submissions

ENDORSEMENT ON COSTS

[1] I have read and considered the written submission(s) from both counsel.

[2] As submitted by counsel, the provisions of Rules 49.10(1) and Rule 57.01 and s.131 of the Courts of Justice Act apply in this case.

[3] The factors to which I must direct my attention when exercising my discretion whether the court should grant a costs order at all, and the quantum thereof if it does, are set out in Rule 57.01 (1) as follows:

Factors in discretion – In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.

[4] Pursuant to Rule 57.01 (7), I am to decide the costs issue as follows:

Process for Fixing Costs – The court shall devise and adopt the simplest, least expensive and most expeditious process for fixing costs and, without limiting the generality of the foregoing, costs may be fixed after receiving written submissions, without the attendance of the parties. (my emphasis)

[5] In this case, the Crown made a Rule 49 formal Offer to Settle on June 27, 2012, well before the need to prepare for, then attend on October 23, 2012, the five hours of cross examination of the Respondents.

[6] Having now had revealed to me the terms of that Offer to Settle, there is no doubt that the Respondents should have accepted the offer and avoided the extra effort and costs incurred that their refusal to do so required.

[7] Rule 49.10 (1) clearly sets out the consequence of the Respondents’ rejection of the Crown’s offer, as follows:

Plaintiff’s offer – Where an offer to settle,

(a) is made by a plaintiff at least seven days before the commencement of the hearing;

(b) is not withdrawn and does not expire before the commencement of the hearing; and

(c) is not accepted by the defendant,

and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise.

[8] I accept and agree entirely with Crown counsel’s view of the case, as set out in his Costs Outline of January 9, 2013, namely :

Complexity

This case required the Court to examine issues of both fact and law based on a written record consisting of 18 sworn affidavits. Cross-examinations on the 7 deponents of the Respondent took place on October 23, 2012, and the application required a half-day to argue on December 11, 2012. The Court was required to make findings of facts in a case where each side advanced competing versions of factual events.

Importance of Issues

The issues were important to the parties and the Attorney General acted in the public interest. This is the first case to the Applicants’ knowledge where the court has adjudicated on the interaction between the Ontario Disability Support Program Act and the Civil Remedies Act.

Denial/Refusal to Admit

The Respondents refused to acknowledge that Hewa Waledkhani resided with his family and had a relationship with his family, in the face of overwhelming evidence from police surveillance, the police investigation, and from phone records. The court found the Respondents’ evidence on this issue to be intentionally false, misleading and not in any respect credible. This is a relevant factor to consider in fixing costs.

[9] Crown counsel has practiced law for seven years and the hourly rate upon which a costs order is sought to be based is very reasonable, regarding both portions of the costs sought. (i.e: on a partial and then on a substantial indemnity basis after the rejected Offer to Settle). Counsel for the Respondents takes no issue with the hourly rate sought. He objects however to the times claimed by the crown for the various attendances necessary to conclude the matter. In response, the Crown concedes that one of his time estimates is wrong.

[10] I accept the Crown’s submission that, as set out in para. 38 of the case of Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.C.), “A successful litigant has a reasonable expectation of receiving an award of costs. The quantum of costs awarded should reflect an amount that the Court considers to be a fair and reasonable amount to be paid by an unsuccessful party for the kind of matter involved and should take into account the fair and reasonable expectations of the parties.”

(11) The Crown is also correct when he submits that the Boucher case ( at para. 26 ) sets out the proviso that the exercise of fixing costs ”is not just a mechanical exercise that begins and ends with a calculation of hours times rates” charged.

(12) The amount claimed for the interpreter/translator is entirely reasonable and the adjustment to the disbursement for photocopying/courier is appropriate.

[13] Having reviewed my findings, the factual evidence relied upon (as set out in my Reasons for Judgment) and considering what costs an informed litigant could reasonably expect to pay if he/she/they lost their case (especially after rejecting a reasonable Offer to Settle, as occurred here) and adopting the “simplest, least expensive and most expeditious process” by which this decision could be made, I set costs payable by the Respondents Dara and Hewa Waledkhani, Qamarnaz Amiri and Ezat Hosseini to the Crown, jointly and severally, at $10,000, consisting of $8,000 for fees, plus $2,000 for disbursements.

“G.A. Campbell J.”

____________________________ G.A. Campbell J.

Released: January 25, 2013