ONTARIO SUPERIOR COURT OF JUSTICE

COBOURG COURT FILE NO.: CV-28/11
DATE: 20140529

BETWEEN:

Emad Elguindy

Plaintiff

— and —

Alina Dermardirosian

and

Justine Kotlarz

Defendants

COUNSEL:

Mr. Emad Elguindy, Self-represented

Mr. David Tortell, Counsel for the Department of Justice on behalf of the Defendants

Heard By Oral and Written Submissions

H.K. O’Connell J.

COSTS ENDORSEMENT

Some Relevant History

April 18, 2014

[1] On April 18, 2013 the parties were advised, via endorsement, that I was granting summary judgment as requested by the defendants, with reasons to be delivered at Cobourg on April 24, 2013. The date of April 24, 2013 was chosen as court staff advised me that Mr. Elguindy had made another motion returnable at Cobourg on that date, naming the same defendants but also naming two third parties. This newest motion of Mr. Elguindy was dated and filed on March 25, 2013.

Events of April 24, 2013

[2] On April 24, 2013 Mr. Elguindy and Crown counsel were present at Cobourg for the purposes of receiving the reasons for judgment on the summary judgment motion. The matter was held down until the afternoon as the court had a regular list to deal with.

[3] When court reconvened in the afternoon, the court became privy to the fact that Mr. Elguindy had left a note with the Registrar just after court broke for the lunch recess. I read that note when the matter was next spoken to at roughly 2:40 pm. Mr. Elguindy left court at the lunch recess without bothering to advise the Crown orally, or the court, that he was doing so. Mr. Elguindy was fully aware, as the court had earlier addressed the issue with him present and Crown counsel present, that the court was holding the matter down until the afternoon. Mr. Elguindy voiced no concern to the court.

[4] The note left by Mr. Elguindy is now with the court file. Mr. Elguindy advised in his note that he was abandoning his March 25, 2013 motion.

[5] I then proceeded to give my oral reasons for granting summary judgment. I then agreed with the Crown’s request, for the reasons provided by the Crown, that I should hear the Crown’s submissions on costs in court.

[6] The Crown had served Mr. Elguindy personally with its compendium on costs earlier in the morning of April 24, 2013. The Crown had also sent a copy of its costs submissions, via courier, to the attention of Mr. Elguindy on April 23, 2013.

[7] Once the Crown made its submissions on costs, I ordered the transcript of the cost submissions of the Crown, and asked the Crown to serve Mr. Elguindy with the transcript of the proceedings, as well as provide him with the two cases that the Crown submitted to the court.

[8] The Crown duly served Mr. Elguindy on April 30, 2013, via courier, with the transcript, as well as the two cases.

Elguindy’s letter of May 06, 2013

[9] On May 06, 2013 Mr. Elguindy faxed the court a letter. He did not bother to send it to Crown counsel. His letter was sent to the Crown via my assistant. In his letter he explains that he had to leave court at 1:00pm on April 24, 2013.

[10] The letter, amongst other content, notes that April 24 was not a date that was set for cost submissions, and further opined: “how in the world did His Honor(sic) allow Mr. Tortell to speak to costs in my absence and in the absence of a previous endorsement that might have limited the amount of pages for costs submissions?”

[11] Mr. Elguindy went on to say, “with respect, please tell his Honor (sic) that I am also sick of his giving an ex-colleague more than what is required to be impartial. His Honor (sic) should have refused to hear the matter but no sweat the matter is now in the Court of Appeal.” (emphasis added by me)

[12] What Mr. Elguindy fails to mention, is that in reference to his assertion that I gave “an ex-colleague more than what is required to be impartial” and that I should have recused myself from the motion, was discussed when the motion was before me on November 12, 2012.

[13] At that time Mr. Elguindy made mention that he understood that I had worked at the Department of Justice prior to my appointment to the bench. To ensure transparency and fairness I canvassed that issue with the parties on November 12, 2012. I advised Mr. Elguindy that I had worked at the Department of Justice many years ago but only with the Federal Prosecution Service, and not in the civil litigation section.

[14] In addition I advised Mr. Elguindy that subsequent to my employ with the Federal Prosecution Service, I then worked at the Public Prosecution Service of Canada, an entity that was independent of the Department of Justice. Mr. Elguindy is well aware from my commentary of November 12, 2012, that I did not know Mr. Tortell, and had never worked with him. Mr. Tortell confirmed this when asked by the court. Mr. Elguindy took no issue with me hearing the motion.

[15] Mr. Elguindy’s commentary about Mr. Tortell being a former colleague of mine is untrue and unmeritorious. I can only assume that he revisited the issue in his note left with the court on April 24, 2013, to impute bias to the court and absent the context that I provide now, to cause a reader of the content of his letter of April 24, 2013, to perceive an actual or perceived bias.

[16] Mr. Elguindy’s comment that I should never have heard the motion is simply disingenuous and scheming. He consented to my hearing the matter and knows full well that there was no rational basis to believe that I was anything less than impartial.

Court’s endorsement of May 07, 2013

[17] Post receipt of Mr. Elguindy’s faxed correspondence of May 06, 2013 the court crafted an endorsement setting out what it expected of him. The court directed that Mr. Elguindy serve and file his costs submissions by May 23, 2013 on the same basis as to the length of the Crown’s submissions, made orally in court on April 24, 2013, namely 13.5 double spaced pages, plus any proposed bill of costs.

[18] In the same endorsement I set out the variations in Mr. Elguindy’s contact information over the period of time from February 07, 2013 to May 06, 2013 in the various pieces of correspondence sent by him.

Elguindy’s phone call to my Assistant and subsequent message

[19] On May 15, 2013 my assistant advised me that Mr. Elguindy called and advised her that he did not intend on responding in writing to the Crown’s cost submissions.

[20] Yet again on May 25, 2013 Mr. Elguindy called my assistant. This time he left a voice mail message. He indicated that he wanted the court to sign the order in relation to the summary judgment[1] as he needed it for his appeal book. He further advised that it was the last thing required to perfect his appeal.

Court’s endorsement of May 31, 2013

[21] As a consequence of these communications with my assistant, I crafted another endorsement dated May 31, 2013[2] wherein I referenced Mr. Elguindy’s phone calls to my assistant. I noted the following at paragraphs 5 and 6 of the endorsement:

The court has received nothing to date from Mr. Elguindy with respect to cost submissions. Given the message conveyed to my assistant, as noted above, I fully assume that Mr. Elguindy is purposefully absenting himself from his otherwise presumptive right to make submissions on costs.

However to ensure exquisite fairness and in the event that I am mistaken, Mr. Elguindy will be given an extension until June 14, 2013, to serve and file cost submissions.

[22] I further indicated that I would not have the order issued in relation to the summary judgment until I had determined costs.[3]

Elguindy’s correspondence of June 05 and June 17, 2013

[23] The endorsement of May 31, 2013, apparently got Mr. Elguindy’s attention as he responded with a fax dated June 05, 2013, setting out his position on the issue of costs.

[24] Mr. Elguindy’s last correspondence with the court is dated June 17, 2013 wherein he requests that I approve the order underpinning the summary judgment, supposedly because the Crown had misled the Court of Appeal into dismissing his appeal for want of perfection.

Submissions of the Crown on Costs

[25] Crown counsel, as indicated, filed his bill of costs inclusive of several appended documents with the court on April 24, 2013. I also had the benefit of the review of the transcript of the submissions of the Crown made to the court in relation to costs.

[26] The Crown sets out costs inclusive of disbursements and HST at the partial indemnity scale of $57,910.90 and at substantial indemnity recovery of $82,068.61. The Crown argued strenuously for substantial indemnity recovery.

[27] The disbursements incurred are noted and particularized to be $9,595.44 inclusive of HST.

[28] In his oral submissions Mr. Tortell noted that this case spans some three years. Recovery for fees is said to be much less than what was otherwise incurred. The fees have been substantially discounted.

[29] The Crown recognizes that “the case law is clear that bills of costs are not merely mathematical exercises….” In support of its request for substantial indemnity costs counsel for the Crown argued orally that Mr. Elguindy’s historical and continuing egregious behaviour must be considered. The Crown submits that Mr. Elguindy’s case must be seen for what it was: devoid of merit and based on deception.

[30] The Crown notes that in my judgment I found that Mr. Elguindy’s action was without merit, vexatious and a waste of time. Mr. Elguindy, it is submitted, has done nothing to expedite the proceedings, and has been disingenuous with counsel. Indicative of Mr. Elguindy’s approach, says the Crown, is his failure to engage in his own examination for discovery because he did not know the name of the reporter who was to transcribe the proceedings.

[31] Crown counsel provided the court with case law, which as I have mentioned earlier was provided to Mr. Elguindy, via courier. Counsel referred to Royal Bank of Canada v. Tie Domi Enterprises Ltd. [2012] O.J. No. 297 (S.C.J.). In that decision Justice Allen overviewed why she was awarding substantial indemnity costs, with reference to the attempt by the party, Tie Domi, to mislead or deceive the court, and to sanction the conduct of a litigant’s outrageous conduct.

[32] Crown counsel says Mr. Elguindy did the very same thing before me: to deceive and mislead me on the motion for summary judgment.

[33] The Crown submits that Mr. Elguindy’s deception is evident with his denial that he had not received the affidavits of the defendants and the examination transcriptions on those affidavits, yet he clearly did given his recital of portions of their evidence in his factum. Mr. Elguindy also engaged in deception with his claim that he lied to the parole authorities when he conceded breach of his parole, yet on the motion before me said that was in turn a lie.

[34] Citing North American Construction (1993) Ltd. v. York (Regional Municipality) [2009] O.J. No. 4627 (S.C.J), Crown counsel quoted the following from Strathy J., as he then was:

Appellate authority makes it crystal clear that substantial indemnity costs should be reserved for exceptional circumstances and exceptional misconduct – described as reprehensible, scandalous or outrageous conduct. It should be exercised in “rare and exceptional cases to mark the court’s disapproval of the conduct of the party in the litigation.”[4]

[35] In sum the Crown submits that the case at bar is one of these exceptional cases warranting substantial indemnity costs. To quote the Crown:

Mr. Elguindy has demonstrated again, and again, and again, and again, amply in the context of this litigation, his absolute disregard for the process, and his willingness to take any step necessary to – to succeed in what is clearly, litigation with absolutely no merit whatsoever…..

[36] The Crown argues that Mr. Elguindy’s behaviour requires the sanction of substantial indemnity costs given his attitude and proven resolve to have not a care for costs in the context of litigation without merit.

[37] The Crown’s materials are well crafted and succinct. They provide a methodical outline of each of the stages of the litigation effort and the expenses that the Crown says it undertook in its defence of the claim and its motion for summary judgment.

[38] Finally Crown counsel also sought costs for his attendance on April 24, 2013 in the amount of $1,200.00.

Submissions of Mr. Elguindy on Costs

[39] In his letter sent via fax dated June 05, 2013 Mr. Elguindy provided a 5 paragraph submission on costs. He thanked the court for extending the time for him to file his submissions.

[40] He asserts that the defendants did not incur costs and references a “Briefing Note to the Commissioner,” which he has appended to his submissions. That note saves the defendants harmless from damages, personally.

[41] Mr. Elguindy submits that his action had merit. He further argues that the new Rule 20, “has caused substantial problems in the legal profession in connection with the interpretation of the Rule.”

[42] Mr. Elguindy notes that the Combined Air case was but one of five decisions that the Court of Appeal rendered on the new Rule 20. Mr. Elguindy reminds that the Supreme Court reserved on the appeal of the Combined Air line of cases.[5]

Findings

[43] The Court is guided by the considerations set out in Rule 57 of the Rules of Civil Procedure. I must however consider the overriding principles of reasonableness, fairness and proportionality.

[44] Mr. Elguindy proved to be a tenacious yet wholly mischievous and errant litigant. He had the temerity to concede breach of his parole to the Parole Board, and yet before me said that he lied when he made that concession. This submission was preposterous.

[45] Furthermore I note that he had no hesitation, much less shame, in trying to mislead me on the summary judgment motion by claiming that he never received the affidavits of the defendants, yet he quoted liberally and verbatim from that very same material in his factum.

[46] His litigation attempt was complicated but that was a function of his own calculated and deceptive manoeuverings.

[47] As a consequence this motion was not a simple summary judgment motion. It was built on a foundation of considerable work and rigour. It was made completely and unnecessarily complex by Mr. Elguindy. Indeed his action against the defendants was devoid of merit.

[48] It is trite that there is a real cost occasioned in this type of litigation. The public purse is not an open wallet to be merrily pilfered by those who engage in untenable, unwarranted and unfounded litigation.

[49] Time for meritorious actions is squandered when litigants like Mr. Elguindy act as they do. Justice Karakatsanis, in the Hyrniak decision, stated:

Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened.

[50] The actions of Mr. Elguindy are those that, with the time required to defend them and the court time to deal with them, so very unnecessarily, are one of the reasons that access to justice is such a challenge. Not only is an effective and accessible justice system crucial to ensure that the rule of law is not threatened, it is equally imperative that those who beleaguer the court with actions such as Mr. Elguindy’s are reminded of the consequences of their completely unmeritorious and vindictive quests.

[51] Mr. Elguindy himself has recognized, on the issue of reasonable expectations in the realm of costs, the consequences of costs given his declaration to the Crown in relation to an examination of the defendant Dermardirosian as part of the summary judgment proceedings, that: “this is an examination … done at your expenses, and I don’t care if this takes one month; you’ll be paying for the cost.”[6]

[52] Nor did Mr. Elguindy do anything to expedite the proceedings. He set out to make the life of the defendants miserable for no rational reason. He acted with complete disregard to the costs that were being incurred.

[53] Furthermore, Mr. Elguindy, as Healey J. overviewed in her decision in Elguindy v. Warkworth Institution 2011 ONSC 4670, [2011] O.J. No. 3631, a decision contained in the authorities referenced by the Crown before me on the hearing of the summary judgment motion, has a track record of exhibiting a lack of credibility.[7]

[54] I make reference to this dicta as it illustrates that Mr. Elguindy’s lack of credibility is well entrenched. Mr. Elguindy’s historical lack of credibility, as found by other judges, was replicated before me. His deceit and manipulation are regrettably features of his character and suggest that the concerns of Langdon J., as forecasted in his reasons for sentence, where Mr. Elguindy was sentenced on his 2008 conviction for a substantial fraud on a very vulnerable victim, continue to manifest.[8]

[55] It is worth noting that the revocation of his day parole a mere three weeks into it, in October 2009, was a function of his continuing deceit and manipulation which underpinned the conclusion that his risk to re-offend was unmanageable in the community.[9]

[56] Mr. Elguindy’s course of conduct was driven by his own agenda, secured by what I can only perceive to be a completely narcissistic focus.

[57] Against these findings, I will now determine what an appropriate assessment of costs is having regard to the touchstones of reasonableness, fairness, proportionality and consistent with the reasonable expectation of the parties.[10]

[58] In the context of proportionality it is of note that Mr. Elguindy sought damages in the amount of some 6 million in fixed damages plus other alleged damages.

Quantifying the Costs

Disbursements

[59] I will first deal with the disbursements claimed by the Crown. I cannot quarrel with the disbursements incurred. They are particularized, reasonable and were clearly necessary in the context of this case.

[60] Disbursements, inclusive of HST, are therefore to be paid in the amount of $9,595.44.

Legal Fees

[61] I find no substance in Mr. Elguindy’s argument that the defendants did not incur costs. They were under the umbrella of refuge of the Briefing Note to the Commissioner, which was provided to allow the defendants to avail themselves of Department of Justice legal representation and to be saved harmless personally from the costs of their defence to the action. That is where the costs were incurred. Those fees are costs borne by the taxpayer. They are real.

[62] I further note that the fees are very reasonable in comparison with fees that are charged in the private sector.

[63] The hearing of the summary judgment motion was the proverbial tip of the iceberg. The hearing of the motion itself took just shy of 2 days of court time. The record of the case was complex and made so quite unnecessarily by Mr. Elguindy.

[64] Having regard to the submissions of the Crown, and the actions of Mr. Elguindy, I concur with the Crown’s argument that this is a case for substantial indemnity recovery of costs. I find as Justice Allen did in Royal Bank v. Tie Domi, that the actions of Mr. Elguindy were reprehensible and scandalous. As noted he actively attempted to mislead the court in relation to the false assertion of not having received the transcripts of the cross examination of the defendants. He blamed the Crown. It wasn’t true.

[65] Nor did he have any hesitation in changing his position to gain favour before the court or for that matter the Parole Board, given his admission before that Board that he had indeed violated his parole, and his submission before me that that admission was a tactical falsehood.

[66] Finally I have not lost sight of the fact that Mr. Elguindy's vindictive approach to these particular defendants mired him in his unfettered quest to bring suit against both of them.[11]The defendants acted in complete conformity with their statutory obligations, and the onerous obligation upon them to supervise federal parolees. They did so with the expectation of the public that those who prove to be parole violators will be dealt with to ensure that the privilege of parole is not neutered by lack of supervision.

[67] I have adjusted the costs sought by the Crown to some degree to temper the legal fees given the overlap in work preparation. In relation to the costs as sought by the Crown for attendance at court on April 24, 2013, I decline to order any because the court called the matter in.

[68] Having reviewed the Bill of Costs, and having considered the relative positions of the parties, I conclude that costs of $70,000.00 inclusive of disbursements and HST are warranted. I find that this amount is reasonable and fair and within the contemplation of the parties given the history of this case. It is proportionate to the nature of the Claim and the history of the proceedings inclusive of the summary judgment motion. The Crown’s bill of costs make plain that very substantial fees were expended.

[69] Mr. Elguindy will have the presumptive 30 days to pay the costs, from the date of release of these reasons.

[70] As this now concludes my involvement in this matter, I have signed the order as proposed by the Crown in relation to the granting of summary judgment and have added the quantum of costs to be paid. I have provided the order to the office of the Registrar at Cobourg for issuance.

The Honourable Mr. Justice H.K. O’Connell

DATE RELEASED: May 29, 2014

Footnotes

[^1]: Although Mr. Elguindy claimed that he had to leave court for health reasons, he left draft orders for the court to sign, even though he was not the successful party on the motion. In his note he referenced the need for the court to execute the draft orders so he could perfect his appeal.

[^2]: In my endorsement I directed that Mr. Elguindy engage in no further communication with the court unless he made a request in writing to do so, save and except to provide his cost submissions or advise in writing that he would not be doing so. I was very concerned that Mr. Elguindy was both writing the court, and calling my assistant, without notice to the Crown.

[^3]: Crown counsel provided a draft order for the court’s consideration.

[^4]: Justice Strathy cited the leading cases in the area.

[^5]: The Supreme Court released its judgments on the Combined Air line of cases, in the decisions of Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.J. No. 7 and Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, [2014] S.C.J. No. 8.

[^6]: See: Transcript of Examination of Alina Dermardirosian, at page 281 as excerpted at page 21 of the Crown’s factum on the summary judgment motion.

[^7]: Healey J. noted at page 5 of her reasons the findings of Judge Allen of the provincial court in R. v. Elguindy, [1994] O.J. No. 4357, whereupon in sentencing Elguindy for fraud, Allen J. described him as “a thoroughly dishonest, untrustworthy person and he is not a violent person, but I have very strong suspicion that he has absolutely no intention of stopping his dishonest conduct.” Justice Healey also quoted from the reasons for sentence of Langdon J. of the Superior Court, dated October 02,2008, where Langdon J., upon sentencing Elguindy on his most current fraud conviction, (which underpinned the habeas corpus application before Healey J. and indeed was the same offence for which Elguindy was on parole which precipitated the action before me) , stated : “One could imagine a worse offender than Mr. Elguindy, but it would take some difficulty. My observations of him, his actions and his testimony have convinced me that he is a cunning, amoral, unscrupulous, untrustworthy, lying, parasite who is incapable of feeling concerned for anyone but himself, and that, given the opportunity, he would repeat this offence in a heartbeat.”

(It should be noted that the original sentence imposed by Langdon J. was varied on appeal from 8 to 6 years.)

[^8]: See fn. 8, for the observations of Justice Langdon.

[^9]: Paragraph 4, Judgment of Healey J.

[^10]: See : Ontario ( Attorney General) v. Rothmans Inc. 2013 ONCA 642, where the court reminded that each case must be decided in its own context.

[^11]: It is of note that on July 26, 2010 Mr. Elguindy wrote to counsel at the Department of Justice . In that letter, which pre dated the issuance of the Statement of Claim against the defendants by one month, he advised that he would be bringing an action against the defendants and noted, amongst other things, the following: “I can assure that I will see those 2 women in Hell for each and every minute I spend in jail after October 22, 2009. You will be kept busy. By the way Mr. Rambert why don’t you come with Mr. Tortell to visit me in this Resort? You may like to stay with us for a while.” Clearly Mr. Elguindy’s prognostication of keeping counsel busy was brought to bear. It was the start of his egregious conduct and unmeritorious litigation.