COURT FILE AND PARTIES

COURT FILE NO.: CV-12-110530-00

DATE: 20150917

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: The Estate of Abdolrahim Hashemi-Sabet, by his Estate Trustee and Executrix Savitri Maharaj, Savitri Maharaj, Fatima Hashemi-Sabet by her Litigation Guardian Savitri Maharaj, and Farah Hashemi-Sabet by her Litigation Guardian Savitri Maharaj, Plaintiffs

-and-

Giuseppe Mazzulla and Christine Gavine, Defendants

BEFORE: The Honourable Mr. Justice M.L. Edwards

COUNSEL:
Alfred Schorr, for the Plaintiffs

Alan Rachlin, for the Defendants

HEARD: In Writing

ENDORSEMENT

[1] The defendants were successful in their motion for summary judgment. As a result of granting summary judgment, the plaintiffs’ claims were dismissed. The defendants are prima facia, therefore, entitled to their costs not only of the motion but of the action itself.

[2] The plaintiffs’ claim arose as a result of allegations flowing from the tragic drowning of Mr. Hashemi-Sabet, who was the common-law spouse of the plaintiff Maharaj and the father of the infant plaintiffs. As I indicated in my Reasons dismissing the plaintiffs’ action by granting summary judgment in favour of the defendants, this was clearly a tragic accident for which no one could be found legally responsible. Regrettably, Mr. Hashemi-Sabet’s drowning was as a result of his own negligence.

[3] Mr. Schorr, on behalf of the plaintiffs, argues that the facts of this case are such that this Court should award no costs after taking into account the tragic nature of this case, and the hardship that would be faced by the plaintiffs if required to pay costs to the defendants. Mr. Schorr relies on a decision of Sachs J. in Byers (Litigation Guardian of) v. Pentex Print Masters Industries Inc., 2002 49474 (ON SC).

[4] At paragraph 21 of her Reasons, Sachs J. refers to a decision of the Court of Appeal in Marchand v. The Public General Hospital Society of Chatham, (2000) 2000 16946 (ON CA), 51 O.R. (3d) 97, in support of the proposition that it is appropriate for a judge to take the tragic circumstances of a case into account when exercising his or her discretion as to costs.

[5] I agree with the submissions of Mr. Rachlin, that the facts in Marchand are quite distinguishable from the facts before this Court. That said, however, I do agree with the comments of Sachs J., that in an appropriate case the tragic circumstances and the ability of the losing party to pay costs, is an appropriate consideration to take into account when assessing costs. In my view, this flows implicitly from the comments of our Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), where the Court of Appeal makes quite clear that in assessing costs the Court must take into account what the losing party could anticipate to pay in costs. Where the facts of the case are truly tragic, and it is undisputed that the facts on the motion before me were clearly tragic, it is not inappropriate for the Court to take into account those tragic circumstances in conjunction with the ability of the plaintiff to pay an award of costs.

[6] On the facts before me, I have limited information with respect to the ability of the plaintiffs to pay costs. In the brief filed by Mr. Rachlin, I was provided with some evidence with respect to the assets of Mr. Sabet’s estate. A review of that evidence, which has not been contradicted by counsel for the plaintiff, leads me to the conclusion that with the combined assets in Ontario and Iran, the plaintiffs will be left with an estate that probably exceeds $1,000,000,00. I am hard pressed then to see that this is a case where the plaintiffs have an inability to pay an award of costs.

[7] In his submissions, Mr. Schorr filed his costs outline that suggests if the plaintiff had been successful on the motion for summary judgment, he would have been seeking costs on a substantial indemnity basis, inclusive of HST and disbursements, in the amount of approximately $12,000.00, and on a partial indemnity basis approximately $10,000.00. It is fair to suggest then, that based on Mr. Schorr’s anticipated costs it would not be unreasonable to infer that the plaintiffs could have expected to pay, on a partial indemnity basis, costs for the summary judgment motion inclusive of HST and disbursements of approximately $9,000.00.

[8] In his costs submissions, counsel for the defendants provided materials that demonstrate that from an early stage his client, the insurer of the defendants, was taking a “principled approach” to the action and would not be making any payment on an economic basis. There was also evidence that on March 30, 2013, the defendants offered to settle the action at that stage on the basis of a consent order dismissing the action on a without cost basis. On the basis of the evidence filed by Mr. Rachlin, I am satisfied that the plaintiffs would not have been caught by surprise when now confronted with the defendants demands for costs of the summary judgment motion and the action itself.

[9] Mr. Rachlin, in his costs outline, is seeking partial indemnity costs for the summary judgement motion in the amount of approximately $12,000.00, and for the action approximately $8,500.00. With respect to his disbursement claims, the disbursements for the motion are just over $1,000.00, and for the action itself approximately $2,400.00.

[10] Keeping in mind the decision of the Court of Appeal in Boucher, supra, that one of the primary considerations in fixing costs is to take into account the anticipated costs that the losing party might have expected to pay, I am exercising my discretion and awarding costs for the summary judgment motion in the amount of $9,000.00 plus HST, plus the disbursement claim of $1,229.00. With respect to the defendants’ claims for costs of the action, I am fixing those costs inclusive of HST and disbursements, in the all-inclusive amount of $10,000.00. These costs are payable within 30 days.

Justice M.L. Edwards

Released: September 17, 2015