CITATION: Heydary Hamilton PC v Dil Mohammad, et al., 2013 ONSC 6199

COURT FILE NO.: CV-12-447478

DATE: 20131009

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Heydary Hamilton PC, Plaintiff

– AND –

Dil Muhammad, Pharm Canada Inc., 7302401 Canada Corp., and Alfred S. Schorr, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: D. Alderson and R. Kalanda, for the Plaintiff

W. Chalmers and G. Willoughby, for the Defendant, Alfred S. Schorr

HEARD: June 4, 2013; subsequent written submissions on costs

COSTS ENDORSEMENT

[1] On July 25, 2013 I issued my reasons for judgment in the summary judgment motion brought by the Defendant, Alfred S. Schorr (“Schorr”). The claim against Schorr was dismissed in its entirety.

[2] In the last paragraph of my July 25, 2013 judgment I invited counsel for both parties to make written submissions as to costs. They have both now sent me those submissions.

[3] It is safe to say that the submissions on costs leave no legal stone unturned – the Plaintiff alone has submitted a brief of argument that runs 62 paragraphs together with a thick brief of authorities that contains both reported and unreported decisions, some recent and others older. Counsel for Schorr has made slightly less voluminous, but nevertheless very thorough written submissions as well. I very much appreciate the research and advocacy efforts of both sets of counsel.

[4] As the successful party, Schorr deserves his costs of the motion and the action. The contentious question addressed in both counsels’ submissions is the scale and quantification of costs.

[5] Counsel for Schorr submits that the claim had made serious allegations of conspiracy, extortion, intimidation and fraudulent preferences against him, and that in the result these allegations were found to be entirely without merit. On this basis, Schorr seeks costs on a full indemnity basis.

[6] Further, counsel for Schorr points out that the claim against Schorr was found to be substantially the same as that brought by the same Plaintiff in Heydary Hamilton PC v Hanuka, 2010 ONCA 881, leave denied 426 NR 396 (SCC). In both cases, the Plaintiff responded to a request by its former client that its accounts be assessed with a law suit against the client’s successor lawyer. In upholding the decision of Spence J. dismissing the Plaintiff’s claim in Hanuka, the Court of Appeal awarded costs against the Plaintiff on a substantial indemnity basis. As counsel for Schorr puts it in his submissions here, “the previous payment of a substantial indemnity cost order did not deter Heydary from attempting to relitigate the same issues again in this action.”

[7] The Plaintiff not only opposes costs on a full or substantial indemnity basis; it also opposes the fixing of costs here at all on the grounds that the already weighty record is still insufficient. At paragraph 15 of its written submissions, the Plaintiff states that, “[t]he court has repeatedly held that Bills of Costs cannot be fixed without production of the dockets by the party claiming costs, and the court may refuse to fix costs until those dockets are produced.” For this proposition, it cites two cases: Omers Realty Management Corp. v Peel (Regional Municipality), 2000 CarswellOnt 3714, at paras 5-7, and Royal Extrusions Ltd. v Continental Window and Glass Corp., 2001 CarswellOnt 2849, at para 20.

[8] Neither of the two cases cited by the Plaintiff stand for the proposition for which they are cited. The Omers case, in fact, makes the opposite point. At paras 5-6, the court points out that a printout of dockets is not helpful to a court in fixing costs, and that a Bill of Costs such as that submitted by counsel for Schorr here, which categorizes the various tasks done by the law firm, is just what the court needs in considering costs.

[9] The Royal Extrusions case goes even further and explicitly rejects the proposition for which the Plaintiff seems to invoke it. The court noted that, at para 19, “as long as I am able to identify what work was done and what was charged for the work, I have sufficient information to enable me to fix these costs.”

[10] The Court of Appeal has made it clear that “there is now a presumption that costs shall be fixed by the court unless the court is satisfied that it has before it an exceptional case.” Boucher v Public Accountants Council (2004), 2004 14579 (ON CA), 71 OR (3d) 291, at para 15. This means something quite different than what the Plaintiff requests. The Plaintiff submits, at para 37 of its submissions, that the court should either refer this proceeding to an assessment officer or that the parties’ counsel should re-attend before me “to make oral submissions and in effect hold an assessment of costs.”

[11] The Plaintiff’s request is contrary to the direction of the Rules and the case law. In Apotex Inc. v Egis Pharmaceuticals (1991), 1991 2729 (ON SC), 4 OR (3d) 321, at 326 (Ont Gen Div), Henry J. stated that a court in fixing costs is engaged in a task that is “not an assessment item by item.” Rule 57.01(3.1) makes it clear that only “in an exceptional case the court may refer costs for assessment…”

[12] I see nothing exceptional about this motion that would take it outside of the ordinary case in which the presumption in favour of the motions judge fixing costs of the motion applies. While I do not think that there is a reason to award costs on a full indemnity basis as requested by counsel for Schorr, this does present itself as an appropriate case for costs on a substantial indemnity scale given the far-reaching allegations made against Schorr in the Plaintiff’s unsuccessful claim. I see no basis on which to distinguish this case from the Court of Appeal’s conclucion in Heydary Hamilton v Hanuka, supra, at paras 17-18:

17 Having regard to the former clients’ absolute right to terminate their retainer with the appellant and our conclusions concerning the appellant’s claim for inducing breach of contract and intentional interference with economic relations, we see no merit in the appellant’s claim for unjust enrichment.

18 The appeal is therefore dismissed with costs to the successor lawyers on a substantial indemnity basis…”

[13] The Bill of Costs submitted by counsel for Schorr contains costs related to the action but not to the motion. This is appropriate following a summary judgment motion that dispenses with an entire claim. However, it is unclear to me how much of those costs have been included in costs awards issued previously in this action. While Schorr deserves costs on a substantial indemnity scale, the court must be cautious not to repeat any award already made at a previous motion or a prior stage of the action.

[14] In its Bill of Costs, Schorr’s counsel requests just over $30,000 as an all-inclusive amount of costs for this motion on a substantial indemnity scale. I consider that to be an appropriate amount to award, given the time and effort that went into creating Schorr’s success in the motion.

[15] The Plaintiff shall pay Schorr $30,000 in costs, inclusive of disbursements and HST.

Morgan J.

Date: October 9, 2013