Court File and Parties

COURT FILE NO.: CV-13-474787

MOTION HEARD: June 2, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO

Re: MORTEZA PARDIS NEJAD Plaintiff

v.

LEYLA SALEHPOOR also known as LEILA SALEHPOOR and VAHID KORRAMNIK Defendants

BEFORE: Master Lou Ann M. Pope

APPEARANCES: Atoosa Mahdavian, Law Studio Professional Corporation, for moving party plaintiffs/defendant by counterclaim Fax: 416-487-7474

Harvey J. Ash, for defendants (limited scope retainer for defendant, Leyla Salehpoor) Fax: 416-225-1124

ADDITIONAL REASONS FOR ENDORSEMENT

[1] After my Reasons for Endorsement dated November 5, 2015 were released, Ms. Mahdavian, plaintiff’s counsel, requested a clarification on the relief sought by the plaintiff for costs of the motion against his former counsel, Adam Seif (“Seif”).

[2] Before proceeding with that issue, I wish to point out that at the hearing of the motion on June 2, 2015, Ms. J. Sirdevan, counsel for Law Pro, attended as an observer.

[3] In paragraph 2 of my Reasons, I failed to list the relief sought by the plaintiff for an order for costs against Adam Seif personally. This relief was also sought by the defendants in their cross motion, set out in paragraph 3 b) iii) of my Reasons.

[4] I disposed of the defendants’ relief sought for costs against Seif in paragraph 107 of my Reasons, which states:

Costs against Adam Seif personally

The defendants amended their cross-motion to seek this relief; however, neither defendant adduced any evidence regarding the grounds for such an extraordinary order. In fact, it does not appear that Mr. Seif was served with the motion record as no affidavit of service on him was filed. He is required to have notice of this motion pursuant to Rule 37.07(1). Furthermore, the defendants’ factum contains no submissions or law regarding this issue and defence counsel made no oral submissions on it. Thus I decline to grant this relief.

[5] I will now address the plaintiff’s request for the same relief.

[6] In paragraph 107 of my Reasons above I stated that it does not appear that Seif was served with the motion record as no affidavit of service on him was filed. I note now that presumably he was served because counsel for Law Pro attended at the hearing, as well as at an earlier return of the motion on March 24, 2015. However, Law Pro did not file any responding material to this motion on behalf of Seif, nor did Ms. Sirdevan make any oral submissions.

[7] The plaintiff relies on rule 57.07(1) as follows:

Where a lawyer for a party has caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default, the court may make an order,

(a) disallowing costs between the lawyer and client or directing the lawyer to repay to the client money paid on account of costs;

(b) directing the lawyer to reimburse the client for any costs that the client has been ordered to pay to any other party; and

(c) requiring the lawyer personally to pay the costs of any party. (emphasis)

[8] That rule expressly applies to a “lawyer for a party,” which is not the case herein. Seif’s retainer with the plaintiff ended in or about July 2013.

[9] The plaintiff submits that the following cases held that rule 57.07 may be applied to former solicitors for parties where the solicitor’s negligence resulted in the parties incurring costs in proceedings. (Lico v. Griffith, [1996] O.J. No. 3117 (Gen. Div.), paras 31, 38; Desjardins v. Mooney, [2001] O.J. No. 1448 (Sup. Ct.), para. 5) Having reviewed those decisions, I respectfully disagree that they stand for that proposition. Plaintiff’s counsel did not refer me to any portion of those decisions that stand for that proposition, nor is any portion of the decisions highlighted to support her assertion. Further, the paragraphs cited in the above citations do not support her assertion. Notably, in Desjardins, costs against former counsel was not even sought. (see paragraphs 1 and 32 of that decision.)

[10] For the above reasons, I find that rule 57.07(1) does not apply to a party’s former lawyer.

[11] I note in Galganov v. Russell (Township) (2012), 2012 ONCA 410, 350 D.L.R. (4th) 679, 294 O.A.C. 13, the court held that rule 57.07 is not concerned with the discipline or punishment of a lawyer, but only with compensation for conduct which has caused unnecessary and unreasonable costs to be incurred, and only when a lawyer pursues a goal which is clearly unattainable or is clearly derelict in his or her duties as an officer of the court. The court went on to state that this requires a holistic examination of the entire course of litigation to put in proper context the specific actions and conduct of counsel.

[12] Neither Law Pro nor Seif filed responding material to the motion or cross-motion. No oral submissions were made by Law Pro on behalf of Seif at the hearing of the motion. Prior to the motion, Seif was not examined as a witness under rule 39.03, which was an option available to the parties particularly given the extraordinary relief sought against Seif. Therefore, the court is left with the evidence of the parties regarding Seif’s actions and an excerpt of a transcript from the defendant, Vahid Korramnik’s (“Vahid”), criminal proceeding in which the process server testified about the facts surrounding his attempted service of the statement of claim on Vahid and his alleged affidavit of service. Therefore, I conclude that based on the evidence, or lack thereof, the court is unable to conduct a holistic examination into specific actions and conduct of Seif.

[13] For the above reasons, I decline to grant the plaintiff’s relief for costs against Seif personally.

_____(original signed) ____ __

Released: November 20, 2015 Master Lou Ann M. Pope