Jundi v. Ouaida, 2015 ONSC 2881
COURT FILE NO.: CV-08-357827
DATE: 20150430
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SAMI OSMAN EL JUNDI, Plaintiff
AND:
BASSAM OUAIDA, ANDREW G. LOUCKS, JAMES CORBETT, DUNNVILLE FOREST PRODUCTS INC. and 447248 ONTARIO LIMITED, Defendants
AND BETWEEN:
BASSAM OUAIDA and 447248 ONTARIO LIMITED, Plaintiffs by Counterclaim
AND:
SAMI OSMAN EL JUNDI and LINA MUSKAWI, Defendants by Counterclaim
BEFORE: D.L. Corbett J.
COUNSEL: Sami Osman El Jundi, self-represented
Bassam Ouaida, not appearing
Brian Duxbury, for Andrew Loucks
Hans P. Engell, for James Corbett
Lina Muskawi, not appearing
No one appearing for Dunnville Forest Products Ltd.
AMENDED COSTS ENDORSEMENT AND DIRECTIONS[^1]
[1] In this endorsement I award costs and give directions arising out of the trial judgment in this case (2015 ONSC 2529).
Non-attendance of Ouaida
[2] This appointment to settle costs and related issues was scheduled well before release of the trial judgment, with notice that the trial judgment would be released before this appearance. Notice was provided to Ouaida at his email address and by telephone. Both the email address and the telephone number were provided to the court by Ouaida at the conclusion of trial and all parties were told that communications from the court, including the judgment, would be provided via their contact information. Ouaida did not respond to emails or voicemail messages from the court.
[3] Mr Duxbury advised that he telephoned Ouaida after he learned that the court intended to release its judgment by the end of April. No one answered, but Ouaida returned the call shortly afterwards. He advised Mr Duxbury that he was out of the country, but provided no information about his return date or his intentions respecting the costs attendance.
[4] By April 30th no response had been received by the court from Ouaida and he did not appear at the costs attendance.
[5] The court’s email messages to Ouaida did not “bounce back”.
[6] I am satisfied that Ouaida either knew about the judgment and the costs attendance or actively sought to avoid receiving notice of them. This is consistent with his conduct regarding his own counsel in the lead-up to the trial, for which Ouaida was admonished. In the circumstances I directed that costs submissions proceed in Ouaida’s absence.
Corrections to the Judgment
[7] Mr Engell noted the following typographical errors to the judgment:
a. In paragraph 16, Corbett’s crossclaims were dismissed without costs on consent at the end of the trial.
b. In Paragraph 131(v), “Jundi” should read “Ouaida”.
c. In paragraph 145, “447” should read “DFP”.
d. In paragraph 155, “447” should read “DFP”.
e. In paragraph 168, the amount awarded for punitive damages should be stated consistently. This award is $50,000.
These errors have been corrected and released in an amended judgment, with the same effective release date as the original judgment (April 27, 2015).
Principal amount of the Judgment
[8] The principal amount of the judgment of $289,753.31, stated in paragraphs 93a. and 19(iv) is confirmed. The principal amount of the judgment against Loucks in favour of Jundi is fixed at $2,589.00, being Jundi’s actually incurred legal costs to obtain the certificate of pending litigation.
Interest
[9] Prejudgment interest runs on the restitutionary damages from December 1, 2007 to April 30, 2015. The rate is 4.8% in accordance with the Courts of Justice Act. Total prejudgment interest for this period of 7 years and 151 days is $103,152.17.
[10] Post-judgment interest shall run from May 1, 2015, at the rate of 2% per annum in accordance with the Courts of Justice Act.
Costs
[11] Jundi shall have his costs of the action and Ouaida’s counterclaim fixed at $100,000, inclusive. These are calculated on a substantial indemnity basis, as claimed, with the following adjustments. I have awarded Jundi costs for his own time as a self-represented litigant at the rate of $60 per hour inclusive of taxes (if any). Jundi had claimed $90 per hour on a substantial indemnity basis. I prefer the lower figure, which is not intended as a professional rate for services, but rather a reflection of the opportunity cost of acting as one’s own lawyer. Jundi’s claimed hours are reasonable and do not reflect the total time he spent on the case, but rather a reduced amount to reflect a reasonable claim for costs. Jundi had two consultations with lawyers while he was self-represented, which I have also allowed. Overall costs are materially less than they would have been if Jundi had been represented throughout (assuming the case had followed the same course). The rate is inclusive of any HST that might be payable, and this court expresses no view on whether the rate awarded a self-represented litigant for his own efforts is subject to HST. I have also backed out the actual legal costs for obtaining the certificate of pending litigation, which I have awarded to Jundi from Loucks.
[12] Loucks asks that there be no costs as between himself and Jundi. Alternatively, if costs are to be awarded between them, Loucks argues that he should have some portion of his partial indemnity costs; Mr Duxbury suggests $35,000. Mr Jundi would like his costs from Loucks (in case he is unable to collect his full judgment from Ouaida), but did not press this request to avoid a potential order that he pay costs to Loucks. In the result there shall be no costs paid to or by Loucks.
[13] Corbett seeks costs on a substantial indemnity basis. He made an offer to settle on a dismissal without costs basis in 2011. Material costs had been incurred by that time, and so the offer did represent a compromise from Corbett’s best position.
[14] On the facts it was manifestly obvious that no detrimental reliance was placed on the written letter of opinion and that this aspect of the claim was doomed. Broader allegations of conspiracy could have succeeded theoretically but were not established on the evidence. The allegations against Corbett were serious, and included fraudulent misrepresentation. As Mr Engell argued, it is immaterial if the claim fails on the reliance issue or some other issue: in its essence this was a claim in fraud that was not made out.
[15] On the other hand is the fact of the letter opinion itself, the substance of which was not defended at this trial. I cannot draw a negative inference against Corbett for this failure to defend the substance of the opinion: there was no expert’s report about the applicable standard of care, and the record was clear that there could be no detrimental reliance. In these circumstances it is understandable why counsel would elect not to muddy the waters by diving into the murky waters of professional responsibility.
[16] I conclude that I should follow the principles set out in Rule 49 and give effect to the offer. It was Jundi’s choice to sue Corbett and to continue the suit against him to the bitter end. The result is an order for substantial indemnity costs payable by Jundi to Corbett, fixed in the amount of $75,000 inclusive.
[17] There is no basis for me to order that Ouaida indemnify Jundi for the costs awarded to Corbett: Ouaida’s defence did not implicate Corbett or induce Jundi’s claims against Corbett. I consider it a pity that Jundi is out these legal costs, given all that he has been through. However, he has shown poor judgment in the way in which he pursued these claims as regards both Corbett and Loucks, and this adverse costs order is one of the consequences.
Form of Order Transferring Title Back to DFP
[18] I do not have a factual record before me of the alleged problems with the title to the Dunnville property. As discussed in court on April 30th, the portions shown on the plan as Part Lots 2 and 3 are to be included in the description of the property transferred to DFP. Part Lots 11 and 14 are not to be included, without prejudice to Jundi’s or DFP’s ability to seek further relief as may be appropriate in respect to title to these Part Lots. I express no view at this stage of the merits of these potential claims.
[19] Jundi told me that some portion of the building is actually not on the property but on land owned by the local municipality and reserved for use as a street. I have no evidence of this and it was not an issue for me to decide at trial. If it is true it will arise during the course of any efforts to sell the property and can be addressed at that time among any affected parties.
[20] Counsel for Loucks shall prepare an order for my signature for transfer of the property to DFP on the basis of these directions. Once I have signed the order, counsel for Loucks shall arrange to have the order issued and entered and then registered on title. It will be for DFP and/or Jundi to pursue any further issues relevant to title before me, on reasonable notice to any affected person.
Assessment of Accounts of Swanick & Associates
[21] The motion to oppose confirmation of the Assessment Officer’s report concerning the legal accounts rendered to Jundi by Swanick & Associates shall proceed before me on the merits on June 15, 2015, at 9:00 am, for no more than an hour.
Sale of DFP’s Business
[22] In my original judgment, I indicated that Jundi could take steps to sell DFP’s assets and undertaking if the judgment is not paid by Ouaida. I had planned to address how to deal with this issue with both Jundi and Ouaida on April 30, 2015. This was not possible because Ouaida did not appear.
[23] Jundi may address this issue further with me on June 15, 2015 at 9:00 am. If the judgment has not been paid, and if Jundi proposes to sell the property, then he should be in a position on June 15, 2015, to advise how he proposes to proceed with the sale, including the identity of a proposed real estate agent and a proposed initial offering price. Ouaida has standing to address these issues on June 15, 2015 and should attend at that time if he has anything to say about them. Counsel for Loucks and for Corbett are not required to attend on June 15, 2015 but, of course, may do so if they wish.
Formal Judgment
[24] As indicated in the judgment, I ask that counsel for Loucks prepare the judgment for my signature, and provide copies to all other parties by their email addresses. All other parties will have ten days in which to provide any comments they may have on the draft judgment, also to be delivered via email.
___________________________
D.L. Corbett J.
Date: April 30, 2015
[^1]: a typographical error in paragraph 16 has been corrected