ONTARIO – SUPERIOR COURT OF JUSTICE

Iraj Nabizadeh v. Touraj Manifar

2015 ONSC 6447

Court File No.: CV-14-511175

Motion Heard: September 1, 2015

Counsel: Elena Mazinani for the plaintiff Bruce Robertson for the defendant

ENDORSEMENT - COSTS

Master R.A. Muir -

[1] On September 1, 2015 I heard a motion brought by the plaintiff pursuant to section 103 of Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) and Rule 42.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). The plaintiff asked for an order granting him leave to issue a certificate of pending litigation (“CPL”).

[2] I released my endorsement on September 3, 2015. I dismissed the plaintiff’s motion. I also asked for written costs submissions. I have now received and considered those submissions.

[3] The defendant asks for full indemnity costs in the total amount of $61,748.77. The defendant’s partial indemnity costs are approximately $42,000.00. The defendant takes the position that he was the successful party on this motion. He argues that the plaintiff unnecessarily lengthened the time required to prepare and argue the motion by conducting unnecessary cross-examinations and by raising a number of issues that were not germane to the motion, which resulted in increased cost to the defendant. The defendant also points to the plaintiff’s actions in registering various cautions on title. The defendant submits that the registration of the cautions was improper and also resulted in increased cost.

[4] The plaintiff submits that the defendant’s costs are unreasonable and excessive. The plaintiff suggests that any costs award should be made payable in the cause. The plaintiff also takes the position that much of the work involved with this motion will be useful for the litigation going forward.

[5] The court’s general authority to award costs as between parties to litigation is found in section 131(1) of the CJA, which provides that costs are in the discretion of the court. Rule 57.01(1) sets out a non-exhaustive list of factors the court is to consider when awarding costs. Rule 1.04(1.1) is also applicable. It requires the court in applying the Rules to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding. Rule 57.03 provides that in most cases the costs of a motion should be fixed by the court and made payable within 30 days. When dealing with costs, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) at paragraph 26. In Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:

Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[6] Costs on an elevated scale should only be awarded on the basis of a clear finding of reprehensible conduct. See Clarington (Municipality) at paragraph 40.

[7] These are the factors and principles I have considered and applied in determining the costs issues on this motion. In my view, the defendant has been successful and is entitled to costs. However, I see no basis for an award of costs on a full indemnity scale. Although I do have some concern with respect to the registration of the cautions, I do not view that conduct as rising to the level of reprehensible. There is no other conduct on the part of the plaintiff that could be described in that manner. In my view, this was simply a hard-fought motion on both sides.

[8] I agree with the plaintiff, however, that the costs requested appear to be somewhat excessive for a motion of this nature. A reduction in the costs requested by the defendant is fair and reasonable in the circumstances. The issues were relatively straightforward from a legal and factual perspective. I do acknowledge that the motion was unnecessarily complicated to some extent by the introduction of evidence that was not relevant to the issues on the motion. However, it is also important to note that I did make a finding that the plaintiff had met the test of establishing a triable issue as to whether he held an interest in the land. The motion was dismissed on the basis of other applicable factors. The outcome may have been different had the motion been heard much earlier.

[9] Nevertheless, the defendant was ultimately successful and this motion was very important to the defendant as a CPL would have complicated his ability to finance, develop, market and sell the property.

[10] Finally, I do not place any significant weight on the plaintiff’s argument that the work undertaken in connection with this motion will be useful to the parties as this action proceeds. While such a proposition may be true to some extent, I see no principled basis for determining what costs should be attributed to the motion and what costs can be assigned to the litigation as whole. It is difficult to know at this early stage what evidence from this motion will be relevant at discovery and trial. I see no basis for departing from the presumption in the Rules that the costs of a motion be fixed by the court and made payable within 30 days.

[11] I have therefore reviewed the defendant’s bill of costs with these considerations in mind. In my view, it is fair and reasonable for the plaintiff to pay the defendant’s costs of this motion fixed in the amount of $25,000.00, inclusive of HST and disbursements. These costs shall be paid by November 18, 2015.

Master R.A. Muir

DATE: October 19, 2015