Banis v. Maxcare Medical Plaza 2015 ONSC 2159

COURT FILE NO.: 11-CV-428742

MOTION HEARD: January 16, 2015

SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN: Fereidoun Mehdizadeh Banis

Plaintiff

v.

Maxcare Medical Plaza Incorporated, Gurbir Singh,

Hosseign Mahani Irani Khaneneh, Roghieh Daryani

and Daryani Fine Bakery Inc.

Defendants

BEFORE: Master Thomas Hawkins

APPEARANCES: Sang Joon Bae for moving plaintiff

F (416) 650-1980

Ziba Heyderian for responding defendants

Hossein Mahani Irani Kameneh, Roghieh

Sharifi Daryani and Daryani Fine Bakery Inc.

F 1 (800) 528-4525

Shawn Tock for responding defendants

Gurbir Singh and Maxcare Medical Plaza Incorporated

F (416) 221-8928

REASONS FOR DECISION

[1] On January 16, 2015 I heard a motion by the plaintiff for an order

(a) dismissing the plaintiff’s claim against the defendant Gurbir Singh on a without costs basis,

(b) in the alternative, an order that any costs of the action awarded to the defendant Gurbir Singh be costs in the cause as between the plaintiff and the other defendants,

(c) lifting the stay of this action under rule 56.05 imposed as a result of the order for security for costs made by Master Dash on November 7, 2014, and

(d) varying the timetable order of Master Dash made on January 23, 2014.

[2] In the result, I made an order on January 16, 2015

(a) dismissing the plaintiff’s action as against the defendant Gurbir Singh,

(b) lifting the stay of the action under rule 56.05

(c) varying the timetable order of Master Dash in terms of a new timetable set out in schedule “A” to my order, and

(d) reserving my decision respecting costs.

[3] The following reasons are my decision respecting costs.

[4] I decline to make an order as to costs as between the plaintiff and the defendants other than Gurbir Singh. This action is still pending against the remaining defendants. The evidence before me does not permit me to decide whether or not the plaintiff’s action against the remaining defendants has merit in whole or in part.

[5] In my view, the practical effect of my order of January 16, 2014 is that Gurbir Singh has been successful in his defence of this action. The allegations against him have been dismissed.

[6] As counsel for Gurbir Singh pointed out, the amended amended statement of claim contains the following allegations that Gurbir Singh engaged in conduct amounting to moral turpitude:

(a) the defendants (and thus Gurbir Singh) engaged in deceptive communication with the plaintiff (paragraph 2(s)),

(b) the conduct of the co-defendants (and thus of Gurbir Singh) amounted to bad faith behaviour (paragraph 2(u)),

(c) the plaintiff told Gurbir Singh that his request was neither moral nor legal (paragraph 28C),

(d) the conduct of the defendants (and thus of Gurbir Singh) is reprehensible (paragraph 43) and

(e) the somewhat egregious behaviour of the defendants (and thus of Gurbir Singh) bears the stamp of fraud throughout (paragraph 46).

[7] The plaintiff has sworn an affidavit in support of this motion which is 19 paragraphs long. In his affidavit he does not state that the allegations against Gurbir Singh which I have referred to are false or that he is withdrawing those allegations. Those allegations remain on the public record. The plaintiff’s affidavit makes it clear that his main objective in bringing this motion is to get the stay of this action under rule 56.05 lifted so that he can move this action forward to mediation and (if necessary) trial.

[8] In Hamilton v. Open Window Bakery Ltd., [2004] S.C.C.9 the Supreme Court of Canada held (at paragraph 26) that where a litigant makes an unsubstantiated allegation of fraud or dishonesty against another, that is a basis for ordering the litigant making those unsubstantiated allegations to pay full indemnity costs. There are many cases to the same effect.

[9] In his affidavit the plaintiff has presented evidence of his financial circumstances and those of his wife. He submits that he is impecunious and that in consequence he should not be ordered to pay any costs. I disagree.

[10] In my view, even where there is evidence that a party from whom costs are sought is impecunious or there is evidence that a party from whom costs are sought would find it a hardship to pay costs, it does not automatically follow that no costs award should be made. In such circumstances, costs remain in the discretion of the court.

[11] The court can always consider the financial circumstances of a litigant ordered to pay costs if the costs which the court has awarded are not paid as ordered or at all and the party to whom costs are awarded brings a sanctions motion under subrule 57.03(2) or rule 60.12 or both.

[12] For all these reasons and particularly because in his affidavit the plaintiff has failed to state that the allegations against Gurbir Singh which I have referred to are false or that he is withdrawing those allegations, I have come to the conclusion that I should order the plaintiff to pay substantial indemnity costs to Gurbir Singh.

[13] I have two relevant costs outlines before me. One outline deals with the costs of this motion. The other outline covers the costs of both Gurbir Singh and Maxcare Medical Plaza Incorporated of defending this action but not the costs of this motion.

[14] For the reasons set out in paragraph [4] above, I decline to order the plaintiff to pay the costs of Maxcare Medical Plaza Incorporated of defending this action. As part of my costs calculations, I have therefore cut in half the amount of the costs for this action sought by both Gurbir Singh and Maxcare Medical Plaza Incorporated.

[15] I therefore fix the costs of this motion and action which the plaintiff is to pay to Gurbir Singh on a substantial indemnity basis at $20,000. The plaintiff is to pay such costs to Gurbir Singh within 180 days.

(original signed)

Date: May 14, 2015 Master Thomas Hawkins