CITATION: Choksi v. Peerani, 2015 ONSC 2271

COURT FILE NO.: CV-12-1883-00

DATE: 2015 04 08

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MUHAMMAD ARIF CHOKSI

R. Swaine, for the Plaintiff

Plaintiff

• and -

MUHAMMAD IQBAL PEERANI, NEELOFAR PEERANI, ZAIN PEERANI and SUMAIR PEERANI

R. Thapar for the Defendants

Defendants

HEARD: April 3, 2015

ENDORSEMENT RE: COSTS THROWN AWAY ON DEFENDANT’S DEFAULTED EXAMINATION FOR DISCOVERY

MACKENZIE J.

1By Endorsement dated March 26, 2015, I fixed the costs of the plaintiff’s successful motion to compel the attendance of the defendant Peerani to attend for his examination for discovery at his own expense. The costs of the plaintiff’s motion were fixed at $1,500.00. In aid of finalizing the costs award, I directed the plaintiff to serve and file documentary evidence of costs thrown away arising from the defendant Peerani’s default in appearing on his originally scheduled examination date. I have since received from the plaintiff a costs outline relating to the costs thrown away and the defendant Peerani’s opposition to any award for costs thrown away.

2The plaintiff seeks fees of $1,350 plus HST of $175.50 together with $203.40 for disbursements, totalling $1,728.90. The defendant submits that the value attributed to the plaintiff’s preparation is not “thrown away” inasmuch as that the preparation can be transferred to the rescheduled examination of the defendant Peerani. This position has some weight but it is not dispositive: counsel for the plaintiff will doubtless have to “reconstruct” his preparation, the time required for the same being dependant on the interval between the defaulted examination and the rescheduled examination. The plaintiff attributes $750.00 (or 2.5 hours) as the value of preparation. I would discount this amount by $250.00, leaving $500.00 as the costs thrown away for preparation.

[3] The defendant also submits that no costs should be awarded for plaintiff’s counsel’s travel and attendance to the defaulted examinations on the basis that counsel for the defendant Peerani informed plaintiff’s counsel by fax letter dated February 3, 2015 that the defendant would not attend on the appointed date of February 13, 2015. A copy of this February 3, 2015 letter is appended to the submissions of counsel for the defendant, Peerani.

4Among other things, it states Mr. Peerani is in Pakistan and cannot be available on February 12, 2015. It goes on to state that “Mr. Peerani has advised that he is available for any date after July 15, 2015. We are still trying to get a date sooner than that.”

5I note this action was commenced in 2012, approximately 3 years ago. Whatever the reasons for its glacial pace, it is nonetheless distburbing that a litigant who is outside Canada cannot attend to his interests as a defendant in the discovery process on some time-sensitive basis. As to the position that he would only be available some 5 months after the defaulted date, in the absence of circumstances being put forward as tantamount to force majeure, it is cavalier to say the least.

6In my view, it was appropriate for plaintiff’s counsel to attend the examination scheduled for February 12, 2015 to obtain the certificate of non-attendance of Mr. Peerani and thereafter bring his motion. I accordingly allow the plaintiff’s claimed costs relating to travel and attendance of his counsel.

7In the result, I fix costs thrown away as follows:

Fees: $1,100.00

HST $ 143.00

Disbursements $ 203.40

Total: $1,446.40

The sum of $1,446.40 shall be paid forthwith by the defendant Peerani to the plaintiff.