CITATION: 6443923 Canada Inc., c.o.b. as Zesty Market v. Khodabandeh, 2016 ONSC 2212
COURT FILE NO.: 09-46138
DATE: 20160331
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
6443923 CANADA INC. c.o.b. as ZESTY MARKET
Plaintiff/Defendant by Counterclaim (Responding Party)
– and –
ALIREZA KHODABANDEH
Defendant/Plaintiff by Counterclaim (Moving Party)
– and –
PARS EMPIRE NORTH AMERICAN INC., 1550499 ONTARIO LTD., ALI KARIMI (also known as Ali Kariminiaigheh) and NAVA VOSOUGH
Defendants by Counterclaim
Eric Lay, for the Plaintiff /Defendants by Counterclaim (Responding Party)
Ian McBride, for the Defendant /Plaintiff by Counterclaim(Moving Party)
HEARD: By written submissions
Beaudoin j.
decision on costs
[1] The Defendant was entirely successful in his motion for summary judgment. The Plaintiff’s claim was commenced in 2009 and alleged that the Defendant had stolen in excess of $800,000 from the Defendant’s store.
[2] The principal person behind the Corporate Plaintiff, Ali Karimi, was previously sentenced on November 13, 2012 for the attempted extortion of the Defendant. In sentencing Ali Karimi to incarceration, Justice Ratushny said this in R. v. Karimi 2012 ONSC 5245, at p. 25, paras. 136, 137 and 139:
The Crown characterizes Karimi’s offences as calculated and intended to intimidate and to gain advantage. The Crown submits that the intimidation and harassment have continued past the charge dates by Karimi’s filing of civil claims against each of the three victims amounting to over one million eight hundred thousand dollars in total. In each of their victim impact statements the victims have spoken of the added burden of these the civil claims.
All of these circumstances make Karimi’s offences of extortion and harassment extremely serious and his moral culpability high. They serve to aggravate sentence ….. He committed crimes against three of his former countrymen by deliberately preying on their vulnerabilities. He continued this pattern of conduct for 10 months. He drained the bank accounts of two of the victim. He inflicted serious psychological trauma on all three.
The circumstances of Karimi’s offences also require specific deterrence. He continues his false claim. I am not satisfied that he will not reoffend.
[3] This Defendant seeks costs on a full indemnity basis as there has been no evidence to support the Plaintiff’s claims that have persisted for many years.
[4] In this case, the Defendant’s solicitors have also represented two other Defendants who were similarly victims of Mr. Karimi’s extortion. In the Costs Outline filed at the hearing of the motion, the sum of $17,628.62 is claimed on a partial indemnity basis. This amounts to the sum of $31,125.86 with taxes and disbursements on a full indemnity scale. The Defendant claims that further services were rendered with respect to examinations for discovery and other motions in connection with this matter over a period of six years which total an amount of $65,125.35 inclusive of HST and disbursements.
[5] The Defendant conceded that much of the time and disbursements were for the benefit of all three Defendants and agrees that there should be some discount for the benefit accorded to each of these Defendants as those claims are ongoing. Accordingly, the Defendant submits that 40 percent of the total should be deducted from this total resulting in an amount claimed of $39,075.21. In addition, prior counsel rendered an account amount of $4,913.89. The total amount claimed is therefore $75,114.96.
[6] In light of the allegations of theft for which there was no evidence, and in the circumstances of this unique case, the Defendant suggests that costs on a full indemnity basis are appropriate. Master MacLeod previously ordered, on consent, that the Corporate Plaintiff and Ali Karimi will be jointly and severally responsible for any costs awarded in this proceeding.
[7] The Plaintiff submits that the appropriate award of costs for the motion and the action, on a partial indemnity scale is $24,000. The Plaintiff submits that elevated costs are appropriate in only two circumstances: the first relates to offers to settle and the second relates to circumstances where there is a clear finding of reprehensible conduct.
[8] The Plaintiff maintains that there is no suggestion that it has conducted this litigation in the matter that should attract elevated costs. The Plaintiff further submits that the allegations of theft were not so unfounded that they should attract elevated costs.
[9] The Plaintiff maintains that the motion was not a complex one, particularly from the Defendant’s side and that the Plaintiff effectively carried the evidentiary and persuasive burden. The motion was argued over a half day. Examinations were also concluded over approximately a half day.
[10] No issue is taken with the amounts claimed in the Defendant’s Costs Outline for attendance at examinations in preparation and attendance at the motion, but the Plaintiff maintains that the hours claimed for preparation of materials, for communications/review of materials and research and for client consultations (approximately 80 hours in total) exceed what is appropriate in the circumstances.
[11] The Plaintiff submits that an appropriate costs award for the motion on a partial indemnity basis would be in the range of $8,000 plus disbursements claimed of $553.87. As for the costs of the action, the Plaintiff maintains that the Defendant’s proposal that the costs order reflect an apportionment of 60% of the total costs of the three actions in existence is not consistent with the principle of indemnity. He maintains that there is no evidence or suggestion that the Plaintiff had contributed disproportionately to the fees of the three actions or that the Plaintiff’s action demanded a disproportionate amount of the effort involved.
[12] Moreover, the Plaintiff submits that the Defendant’s position will create complexity and difficulty down the road in the event that the other Defendants end up in a position where they can claim costs of their actions. He adds that the Plaintiff may find itself in the position of being asked to pay indemnity twice for the same costs. The Plaintiff submits that an appropriate allocation would be one third of the amount claimed on a partial indemnity basis.
Analysis and Conclusion
[13] The amount claimed in this proceeding was significant. While the motion itself was not complex, the issues were of significant importance to the Defendant. This proceeding has caused the Defendant tremendous stress over a period of six years. Notwithstanding that Mr. Karimi was found guilty of extortion and harassment against this Defendant; he persisted in his false claims of theft even after he was incarcerated. He was not deterred by his sentence and an award of full indemnity costs is warranted. My discretion to make an award on that scale is not as limited as the Plaintiff maintains.
[14] I fix the costs of this motion at $31,125.86 as claimed. I make no reduction on the total amount claimed for the action as there was no evidence to justify the apportionment of 60% of those costs to this Defendant, and I limit his claim for costs to one third of the amount claimed which results in an amount of $21,708.45.
[15] I also allow the full amount of $4,913.89 claimed for previous counsel as there is no evidence that he provided service to anyone other than this Defendant.
[16] The total amount awarded is therefore $57,748.20 payable jointly and severally by the Corporate Plaintiff and Ali Karimi.
Mr. Justice Robert N. Beaudoin
Released: March 31, 2016
CITATION: 6443923 Canada Inc., c.o.b. as Zesty Market v. Khodabandeh, 2016 ONSC 2212
COURT FILE NO.: 09-46138
DATE: 20160331
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
6443923 CANADA INC., c. o. b. as ZESTY MARKET
Plaintiff/Defendant by Counterclaim
– and –
ALIREZA KHODABANDEH
Defendant/Plaintiff by Counterclaim
– and –
PARS EMPIRE NORTH AMERICAN INC., 1550499 ONTARIO LTD., ALI KARIMI (also known as Ali Kariminiaigheh) and NAVA VOSOUGH
Defendants by Counterclaim
decision on costs
Beaudoin J.
Released: March 31, 2016