Court File and Parties

COURT FILE NO.: 13-59681, 15-64451 DATE: 2016/04/11 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rosa and Sima Abdollahpour, Plaintiff AND Sayed Banifatemi, Defendant

BEFORE: Justice Charles T. Hackland

COUNSEL: Kevin Kavanagh, for Sayed Banifatemi Evan Moore, for Rosa and Sima Abdollahpour

HEARD: by written submission

Costs Endorsement

[1] The parties in these two actions are disputing their respective interests in two properties they jointly developed for commercial purposes, being 300A Ferndale and 300B Ferndale, in the City of Ottawa. Both transactions arise out of the same factual matrix and the related contractual or trust issues require adjudication for each property. The two actions will be tried together.

[2] The moving parties (the Abdollahpours) brought this motion to vacate the Certificate of Pending Litigation (“CPL”) on 300A Ferndale. This was the principal issue on the motion. They were unsuccessful. Their argument was encumbered by their incongruous position that a CPL should be registered on 300B Ferndale, which I did allow. Common sense would dictate that a CPL should properly be registered on both lots (or, in the alternative, on neither).

[3] At the conclusion of argument I advised counsel that I planned to release a brief endorsement refusing the Abdollahpours’ motion to vacate the CPL on 300A Ferndale but that I would allow their alternative relief granting leave to register a CPL on 300B Ferndale. As this appeared to be a situation of divided success, I indicated I would not be awarding costs. Shortly after I received a letter from counsel for Mr. Banifatemi, (copied to opposite counsel), requesting that I allow written costs submissions on the basis that there was a relevant pre-motion offer requiring the Court’s consideration. I viewed this to be an appropriate request. I have now received and considered written submissions from both parties.

[4] The responding party (Banifatemi) argues that he is entitled to his partial indemnity costs of the motion because he delivered an offer to settle the motions on January 27, 2016, which was identical to the courts ultimate order i.e. the CPL to remain on 300A and leave to register a CPL on 300B would be granted. Counsel for Banifatemi acknowledges that his client’s offer did not meet the time limit (7 days before the motion) to attract the compulsory cost consequences of Rule 49 of the Rules of Civil Procedure, but asks that the offer be considered under Rule 49.13 of the Rules of Civil Procedure, particularly since he advised Abdollahpours’ counsel on September 11, 2015 that an offer in these terms would be forthcoming.

[5] In the exercise of my discretion, I award Mr. Banifatemi some partial indemnity costs of the motion. I do so because his January 27 2016 offer, informally communicated four months earlier, was an expression of what the Court views as the common sense, inevitable outcome of this motion. Further, the principal issue at stake in the motion was whether the CPL should be maintained on 300A Ferndale, the issue on which Banifatemi was successful.

[6] There were two full days of cross-examinations, the transcripts of which were before court, along with grossly excessive materials. I allow no costs for these cross examinations but if they ultimately serve as examinations for discovery at trial (which I would certainly recommend), they may be treated costs in the cause, subject to the trial judge’s discretion.

[7] Having carefully reviewed the bills of costs and costs submissions of each party, I award Mr. Banifatemi partial indemnity costs of these motions which I fix in the sum of $10,000 inclusive of HST and disbursements, payable by the Abdollahpours, within 30 days of the release of this endorsement.

Justice Charles T. Hackland Date: April 11, 2016