COURT FILE NO.: 99-CV-165569

DATE: 20151113

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: PAUL ELIA AND FURL INVESTMENTS LIMITED

Plaintiffs

AND:

SHABIN ALIZADEH, DOWNTOWN AUTOMOTIVE INC., KING PARLAMENT AUTOMOTIVE INC., KING TOYOTA INC., KING HOLDINSG INC. and CINA HULL

Defendants

BEFORE: THEN J.

COUNSEL: Robert A. Watson G. Sidlofsky

For the Respondent Plaintiff for the Defendant Cina Hull

A. Blumenfeld

for remaining Defendants

ENDORSEMENT AS TO COSTS

[1] In October 4, 2002, I made an order that the first action of the plaintiff be stayed and that the plaintiffs pay to the defendants the costs of the first action as well as the costs of the adjourned motion for summary judgment before Speigel J. in the amount of $1,800. I also ordered that if counsel could not agree as to the quantum of costs of the proceeding before me written submissions could be made to the court within 21 days of the receipt of the judgment.

[2] On October 25, 2002 counsel for the defendant Cina Hull apparently forwarded its costs submissions and supporting dockets to the court. That defendant sought costs in the amount of $9,471.36 for the motion before me and in the amount of $8,351.86 for the stayed action, both on a substantial indemnity basis, to be payable within 30 days of my decision.

[3] On October 28, 2002 counsel for the remaining defendants Alizadeh et al. apparently forwarded its submissions and supporting dockets to the court. Those defendants sought costs in the amount of $4,894.69 for the motion before me of $4,048.45 for the stayed action, both on a partial indemnity basis, also to be paid within 30 days.

[4] On November 29, 2002, counsel for the plaintiff in its costs submissions sought to reargue the motion on the basis that my order against the plaintiff had proceeded on a faulty factual premise i.e. that both defendants had moved for summary judgment, that no summary judgment was heard, that both summary judgment motions were adjourned, and that the plaintiff had been ordered to pay costs to both defendants.

[5] Counsel for the plaintiff submitted that the summary judgment motion of Alizadeh, which was different from that of Hull was heard and dismissed by Speigel J. with costs awarded to the plaintiff.

[6] The plaintiff recommended a rehearing or alternatively that the costs sought to be awarded were greatly excessive and that the costs to the defendant Alizadeh be offset by costs owed to the plaintiff in the matter and that costs be awarded in the cause.

[7] On December 9, 2002 counsel for the defendant Hull responded to the plaintiff’s submissions asserting that no motion has been brought by the plaintiffs to vary the order in accordance with Rule 59.06 and that in any event that there are no grounds warranting any variation.

[8] Unfortunately, I have no recollection and have not been able to ascertain from any record that the above material was ever delivered to me. It is entirely possible that the material could have been misplaced as I was in the process of moving offices during that period of time. Moreover, there has been no attempt by any counsel to obtain a costs order in the intervening period. This material consisting of the costs submissions of the parties has been drawn to my attention by Master Short who is dealing with aspects of this matter and has informed me that a costs order is now necessary so that litigation with respect to this matter can continue.

[9] While my decision must, of course, speak for itself, I disagree with the plaintiff’s assertion that the decision turns on a faulty factual premise. While the background to this motion could have set out more clearly the fact that Hull and Alizadeh et al. brought separate summary judgment motions with different results is irrelevant to the decision. The decision does not turn solely on whether Speigel J. ordered the amendment of the statement of claim in the first action, involving all the defendants, as a result of the summary judgment motion brought by the defendant Hull. The decision turns on the fact that the plaintiff failed to comply with the order of Speigel J. to amend the statement of claim in the first action, involving all defendants, or to seek the order or direction of the Court, but rather, that he proceeded to commence a second action, involving all of the defendants, and added more parties and further claims. This course of action taken by the plaintiff impacted on all the defendants. Accordingly all of the defendants had standing to bring the motion before me and to be awarded costs if successful.

[10] The submissions of counsel as to the quantum of costs were all made prior to the decision of the Court of Appeal in Boucher v. Public Accountants Council (2004) 2004 14579 (ON CA), 71 O.R. 3d 291 which stands for the proposition that the overall objective is to fix costs which are fair and reasonable having regard to the factors in Rule 57.01(3) rather than to fix an amount representing the actual costs of the successful party.

[11] Having regard to those factors and having in mind that it was the conduct of the plaintiff which precipitated this step in the proceeding, this was not a complex motion raising issues of great importance which warranted the attention and work that the defendants’ dockets outline. No dockets were submitted by the plaintiff. In my view, the amount of costs sought is excessive.

[12] In my view it is fair and reasonable in the circumstances to award costs to the defendant Hull in the amount of $2,000 all inclusive with respect to the first action and $3,000 all inclusive for the motion before me payable within 30 days of this decision as well as the costs in the amount of $1,800 ordered by Spiegel J. in the adjourned motion for summary judgment.

[13] It is fair and reasonable in the circumstances of this case to award the remaining defendants costs in the amount of $1,000 all inclusive with respect to the first action and $1,500 all inclusive for the motion before me payable within 30 days of this decision.

THEN J.

Date: