Court File and Parties

Court File No.: FC-13-709-0 Date: 2017/03/29 Ontario Superior Court of Justice

Between: FARHAD DERAKHSHAN Applicant – and – SEEMA NARULA Respondent THE ATTORNEY GENERAL OF CANADA Non-Party

Counsel: Farhad Derakhshan, Self-Represented Ian Vallance, Denyse Boulet, for the Respondent Mathew Johnson, for the Non-Party

Heard: by written submissions

Cost Decision: DERAKHSHAN Motions HEARD FEBRUARY 28, 2017

L. SHEARD J.

[1] This cost award is in respect of the two motions brought by the applicant, Farhad Derakhshan (“Derakhshan”), for various relief, including a request to amend the claim to add parties; an order that the respondent, Seema Narula (“Narula”) produce certain documents; an order combining this action with a Small Claims Court action; and an order permitting Derakhshan’s proposed appraiser to inspect certain real property owned by Narula for the purpose of preparing an expert report.

[2] Derakhshan’s motions were dismissed as per written Reasons released on March 3, 2017. The parties submitted written costs submissions, which have been taken into consideration in this decision.

[3] At paragraph 30 of my Reasons I concluded that:

Derakhshan’s motions were wasteful of time and money and for all the above reasons, were dismissed with costs to Narula.

Positions of the Parties

[4] Narula seeks her costs of these motions on a full indemnity basis. Narula had brought her own motion for security for costs. That motion has not yet been decided. In her Bill of Costs, Narula combined the time spent on her motion and in responding to Derakhshan’s motions. Narula’s combined time and disbursements for both motions was $15,290.85. She seeks to allocate one-half of that to these motions and the other one-half to Narula’s motion. On that basis Narula seeks $7,500.00 in costs on Derakhshan’s motion.

[5] I have looked at the materials filed by Narula on both motions. On her motion for security for costs, Narula delivered a seven-page affidavit and a six-page factum. Narula relied upon her affidavit in response to Derakhshan’s motions. In addition, Narula delivered a 10-page factum together with a case brief.

[6] I conclude that it is reasonable to evenly allocate the costs as between the motion brought by Narula for security for costs and on Derakhshan’s unsuccessful motion referenced above.

[7] In his costs submissions, Derakhshan submits that the legal fees should be fixed at $2,491.65 ($2,205.00 plus HST of $286.65). He calculates that figure by multiplying Denyse Boulet’s hourly rate of $245.00 by nine hours. Of the nine hours spent by Ms. Boulet, Derakhshan allocates five hours for preparation of responding documents, two hours for legal research, and two hours for court attendance.

[8] In her Bill of Costs, Ms. Boulet had recorded total time of 35.8 hours to prepare the motion materials; nine hours for research and one hour of the student’s time at an hourly rate of $120.00. One-half of those hours equals 22.4 plus .5 of an hour for the student time. Derakhshan allowed no time to the student.

[9] Ms. Boulet recorded 2.5 hours for the court attendance on February 28, 2016. The court time spent on that date was only for Derakhshan’s motions; Narula’s motion for security for costs was not reached. As a result, it proceeded by way of a motion in writing.

[10] Derakhshan does not object to Narula’s submission that her disbursements be split equally between his motions and Narula’s motion for security for costs. Narula’s disbursements, including HST, total $1,354.00. One-half of that is $677.28. Therefore, in accordance with the joint submissions of the parties, I fix Narula’s disbursements on Derakhshan’s motions at $677.28, inclusive of HST.

[11] By his submissions, I understand Derakhshan to agree that Narula’s costs should be assessed based on Ms. Boulet’s full hourly rate of $245.00. Derakhshan would allow no time for Narula’s senior counsel, Ian Vallance, who had spent 1.3 hours on the motions at an hourly rate of $425.00.

Analysis

[12] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 359 has provided guidelines to the courts in identifying the three fundamental purposes of the costs rules:

1. to indemnify successful litigants for the costs of litigation;
2. to encourage settlement; and
3. to discourage and sanction inappropriate behaviour by litigants

Factors

[13] Rule 2(2) of the Family Law Rules (O. Reg 114/99) (the “FLR”) provides the starting point for this cost decision. It states that: “the primary objective of these rules is to enable the court to deal with cases justly.”

[14] The case law is clear that a successful party is presumed to be entitled to costs (Berta v. Berta, 2015 ONCA 918). Rule 24 of the FLR lists the factors that the court shall consider in setting the amount of costs. Those factors include the reasonableness of the behaviour of each party; any offer to settle; any acts of bad faith by any party; the importance, complexity, or difficulty of the matter; the scale of costs; the hourly rates and time spent; and the reasonable expectations of the losing party.

Success

[15] Derakhshan was entirely unsuccessful on his motions. As per my Reasons for Decision, some of the relief he sought had already been decided and dismissed by another judge. Derakhshan’s request to add new parties was entirely inappropriate and had no chance of success given that we had already completed nine days of trial. Similarly, his request to allow an expert (not yet retained) to inspect and value properties was also ill-founded: again, having brought this motion after nine days of trial, Derakhshan could not comply with the FLR that require a party to deliver an expert report well in advance of trial.

[16] While the court does seek to grant some leeway to a self-represented litigant, before his motions were brought, Derakhshan knew or ought to have known that he could not comply with the FLR respecting expert reports; that other judges had already made determinations on some of the other relief that he was again seeking on this motion; that none of the parties whom he sought to add had notice of his motion; that it would be impossible for any new parties to catch up with the litigation after nine days of trial; that it was improper to ask for parties to be added to the application for the sole purpose of ensuring that they attended as witnesses at the trial; and that the time to determine what documents he required from Narula was before the trial began and not midway through it.

[17] Derakhshan’s motions unreasonably consumed trial time, which is very difficult to get, and unreasonably put Narula to expense.

[18] In Narula’s submissions, she argues that Derakhshan acted in bad faith and, in part, asserts that Derakhshan was not prepared for the motion; he wasted valuable court time by taking unreasonable positions in the middle of trial; he intentionally sought orders that had already been dismissed by a previous judge; he attempted to seek an order relating to his newly-retained assessor when he had no evidence that the assessor could even provide the report he was seeking; and he provided no case law in support of his motions.

[19] Narula’s submissions have a great deal of validity.

[20] Derakhshan responds to Narula’s assertion that he has acted in bad faith by asserting that he did not “consciously act in bad faith” or “knowingly attempt to waste the court’s time on frivolous motions.” He conceded that his handling “of the case thus far has been erratic and may be unfocused” but submits that he did not intend his actions “to be construed as acting in bad faith…” He further submits that “… It is unreasonable for me an untrained citizen to be held to the same standards as those of a seasoned attorney”. He argues that costs assessed against him ought to be tempered “with compassion” for his situation and the effort that he has put toward his case.

[21] The difficulty with those submissions is that cost provisions found in the FLR do not differentiate between represented and self-represented litigants. To do so, would result in a two-tiered system, which would lead to unfairness. All parties to litigation are entitled to expect that their claim will be decided by the same rules (Sanzone v. Schechter, 2016 ONCA 566).

Complexity and Importance

[22] Neither party provided submissions under this heading. I conclude that the issues on these motions were not complex. However, the nature of the relief sought by Derakhshan was important. Certainly, had any of it been granted, it would have had a significant impact upon the course of the trial and, indeed, on the ability of the trial to proceed.

Reasonableness or Unreasonableness of Each Parties Behaviour

[23] I have dealt with this issue above and, more fully, in my Reasons for Decision released on March 3, 2016.

[24] I conclude that Derakhshan was unreasonable in bringing these motions.

Scale of Costs and Hourly Rates

[25] Notwithstanding the apparent agreement by Derakhshan that Ms. Boulet should be entitled to costs on a full indemnity basis, I conclude that he made those submissions on the basis that her hours would be reduced. For the reasons set out in my Reasons for Decision on the motions, I conclude that Narula is entitled to recovery of her costs at 80% of the hourly rates charged by her counsel: this is lower than full indemnity, but higher than partial indemnity.

[26] I have considered Derakhshan’s arguments with respect to the time spent and conclude that the hours spent on preparation and legal research are somewhat in excess of what might be proportionate and reasonable. I have concluded that 25.8 hours is a reasonable amount of time for Ms. Boulet to have spent on the preparation for the Derakhshan and Narula motions. I therefore allow one-half of that, 12.9 hours, to be allocated the Derakhshan motions. I allow the full time spent by Ian Vallance of 1.3 hours at $340.00 per hour ($425.00 x 80%), 50% of which should be allocated against the Derakhshan motions.

[27] With respect to legal research, I conclude that nine hours is a reasonable amount of time to have spent in total, and allow 4.5 hours to be allocated to the Derakhshan motions.

[28] With respect to her attendance on the Derakhshan motions, I allow Narula the full 2.5 hours set out in her Bill of Costs.

Offers to Settle

[29] Neither party has advised the court of any offer to settle Derakhshan’s motions.

Proportionality

[30] In determining the amount to be awarded in costs, the court must consider what is fair and reasonable and proportionate to the proceedings. I have addressed this issue above.

Amount the unsuccessful party would reasonably expect to pay

[31] In reaching a decision on costs, I have considered Derakhshan’s submissions concerning the amount he believes he should be expected to pay. Derakhshan also asks that costs not be payable until the end of the trial or, alternatively, he be afforded 45 days within which to organize the funds.

[32] In consideration of the reasons given for the dismissal of Derakhshan’s motions, it is not appropriate to defer the payment of costs of the motion to the conclusion of the trial. However, he shall be permitted 30 days for the payment of costs awarded here.

Disposition

[33] The task of this Court is to determine what amount is fair and reasonable for the unsuccessful party to pay in the circumstances of this case (see Delellis v. Delellis). I have considered the submissions that were filed by the parties and the applicable case law and the provisions of the FLR.

[34] I determine that it is fair and reasonable for Derakhshan to pay Narula’s costs in the amount of $5,388.70 calculated as follows:

(a) for preparation of the motion materials 12.9 hours at $196.00 per hour for Ms. Boulet ($2,528.40) and .65 hours at $340.00 for Mr. Vallance ($221.00); (b) for legal research on this motion, 4.5 hours at $196.00/hour for Ms. Boulet ($882.00) and .5 hours at $96.00/hour for the student ($48.00); (c) attendance at the motion 2.5 hours for Ms. Boulet at $196.00/hour ($490.00); (d) HST of $542.02 is to be added to these amounts; and (e) disbursements, inclusive of HST, $677.28.

[35] These costs are to be paid by Derakhshan within 30 days of the release of these Reasons.

L. Sheard J.

Date: March 29, 2017

COURT FILE NO.: FC-13-709-0 DATE: 2017/03/29 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: FARHAD DERAKHSHAN Applicant – and – SEEMA NARULA Respondent THE ATTORNEY GENERAL OF CANADA Non-Party

Cost Decision: Motions re: Summonses to Witness

SHEARD, J.

Released: March 29, 2017