Mroue v. Mroue, 2016 ONSC 4820

ENDORSEMENT as to costs

1Following the release of my Judgment in this matter in favour of the Defendant, the parties were unable to agree on costs and have made written submissions with respect to the issue. As I mentioned in my written Reasons for Judgment, the legal proceedings in this case have been described as “torturous” and have been pursued for six years. Throughout the proceedings, the Defendant has taken the position that the issues raised in the Statement of Claim brought by the Plaintiffs were res judicata and in any event, Ontario was not the proper form for the determination of the issues raised by the Plaintiffs. I agreed with that position.

2A Summary Judgment Motion brought by the Defendant was dismissed and a mini-trial eventually ordered. Ironically, the mini-trial proceeded as a Summary Judgment hearing. No viva voce evidence was heard.

3The total solicitor-client bill rendered by the solicitors for the Defendant amounts to $70,809.72. The total solicitor-client bill rendered by the solicitor for the Plaintiffs amounts to $92,734.52.

4Counsel for the Plaintiffs submit that no costs should be ordered because at numerous case conferences, the Plaintiffs were relatively successful in obtaining orders for the advancement of the litigation. The only proceeding that was unsuccessful was when the Defendant successfully applied to the Court to have the Plaintiffs provide security for costs, which remain unpaid. However, a review of the many endorsements issued by various Case Management Masters through the years exhibits a continuing highly contested case, in which issues concerning procedure constituted the dominant subject matter of the numerous proceedings. The Defendant cannot be penalized in engaging in the proceedings.

5The counsel for the Plaintiffs also submits that this case is precedent setting in that no court in Canada has considered, until the decision in this case, the effect of an Arbitration decision based on Sharia Law and whether such a ruling should be recognised by the Ontario Court.

6I am satisfied that there was an issue for trial and that the litigation cannot be described as completely unfounded. Nonetheless, the Defendant was entirely successful at trial and should be awarded his costs on a partial indemnity scale. The partial indemnity costs of the Defendant amount to $53,116.82 inclusive of disbursements and HST.

7An order shall issue requiring the Plaintiffs to pay the costs of the Defendant in the amount of $53,116.82 forthwith.