Court File and Parties

Court File No.: CV-13-1084-00 Original Date: 20170403

Superior Court of Justice – Ontario

Re: Ahmed Elbasiouni v. The Chief Building Official (CBO) The Corporation of The City of Brampton

Before: Barnes, J.

Counsel: Pathik Baxi, Counsel for the Appellant Charles Painter, Counsel for the Respondents Ahmed Elbasiouni, Appellant

Costs Endorsement

Introduction

[1] The Appellant appealed the decision of the Chief Building Officer to revoke a building permit issued for construction on his property (revocation order). The Appellant appealed the revocation order to the Superior Court. This is a cost order pursuant to Rule 57.01(1) of the Rules of Civil Procedure (The Rules).

Background Facts

[2] I upheld the revocation order: See Elbasiouni v City of Brampton 2013 ONSC 5261. The Appellant appealed my decision. The Divisional Court upheld my decision. The matter was sent back to the Superior Court of Justice for the purpose of setting a remediation timetable: Elbasiouni v City of Brampton 2015 O.J. No. 1375; 2015 ONSC 1801.

[3] On September 30, 2016, I set a final remediation timetable for this matter (the remediation order). The remediation order was made after appeals to the Superior Court and the Divisional Court. It is determinative of the Appellant’s appeal of the revocation order.

[4] After the Divisional Court dismissed the Appellant’s appeal, the Appellant brought a motion to reopen the appeal to advance a new argument and to introduce a new piece of documentary evidence (Exhibit H).

[5] I granted the motion on the basis it would constitute a miscarriage of justice not to reopen the case. I concluded that the new piece of evidence was not an authentic document. See Elbasiouni v City of Brampton, 2015 ONSC 6149, at paragraph 97 and Elbasiouni v City of Brampton, 2016 ONSC 6220.

[6] On September 9, 2016, I dismissed the Appellant’s new argument on appeal as res judicata and also on its merits: See Elbasiouni v City of Brampton, 2017 ONSC 1556.

[7] The Appellant was successful on his motion to reopen the appeal. The Respondent was successful on the issue of the authenticity of Exhibit H; on the issue of whether the appeal was res judicata; and on the merits of the new argument raised on appeal.

[8] The Respondent was the most successful party and is awarded full indemnity costs in the amount of $50,976.96 payable forthwith at an interest rate of 3% per annum from the date of this judgment.

Position of the Parties

[9] The Appellant submits that success was divided because he was successful in his motion to reopen the appeal.

[10] The Respondent submits that they were the most successful party and that the Appellant had no basis to seek to reopen the appeal; provided a fraudulent document (Exhibit H) in support of his motion to reopen the appeal; caused the Respondents considerable time and expense in an effort to determine whether Exhibit H was an authentic document; accused the Respondents of conspiring to hide the true zoning for his property; deliberately impeded the ability of the Respondents to contact the witness who the Appellant alleges gave him Exhibit H; and advanced a new argument, with no supporting authority or chance of success, in his bid to obtain a different result on the appeal.

Law

[11] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C43; provides that unless an Act or Rules of Court provide otherwise, a court has the discretion to determine to whom and by whom the costs of a proceeding shall be paid.

[12] The purpose of a cost award is (1) in most cases to indemnify a successful litigant: Hamilton-Wentworth (Regional Municipality) v Hamilton-Wentworth Save the Valley Committee Inc. 51 O.R .(2d) 23 (Ont. H.C.J.); (2) to facilitate access to justice for all litigants and (3) to discourage frivolous and vexatious claims: Standard Life Assurance Co v Elliot, [2007] O.J. No. 2031; (4) to provide consequences for inappropriate behavior by litigants in the conduct of their proceedings: Standard Life Assurance; and (5) to encourage litigants to settle: Fong v Chan, 46 O.R. (3d) 330 (Ont. C.A.).

[13] Rule 57 of the Rules of Civil Procedure (the Rules) sets out some general principles to guide courts in determining cost awards. Rule 57.01(1) sets out some factors the court may consider in exercising its discretion to award costs.

[14] In Anderson v St. Jude Medical Inc., [2006] O.J. No. 508 at para. 22, the Ontario Divisional Court outlined basic principles a court should consider in exercising its discretion to award costs: (1) the factors set out in rule 57.01(1) should be applied to the circumstances of each case; (2) matters such as the experience, rates charged and hours spent must be assessed within the context of reasonableness in relation to the circumstances of the particular case; (3) the quantum of the cost award should be what the court considers as fair and reasonable in all the circumstances rather than the exact measure of the actual costs of the successful party; (4) the reasonable expectation of the unsuccessful party is a relevant consideration in determining whether the quantum of the award is fair and reasonable in all the circumstances; (5) the court should seek to be consistent with comparable awards in other cases; and (6) the principle of indemnity should be balanced with the fundamental objective of access to justice.

Discussion

[15] This matter is of significant importance to the parties. The Respondents granted the Appellant a building permit and legal non-conforming use status. The Appellant began construction of a building, which he described as a Duplex. The building as currently constructed constitutes a significant enlargement of the legal non-conforming use protection.

[16] The Respondents revoked the Appellant’s building permit because, in issuing the building permit, the wrong zoning by law requirements were applied to the Appellant’s property.

[17] The issues raised on appeal were not overly complex but were important. This was an attempt by the Appellant to reopen the case after two unsuccessful appeals to the Superior Court and the Divisional Court. The issues involved were whether the case could be reopened on appeal; whether Exhibit H was authentic (It was agreed that Exhibit H would resolve the dispute if it was authentic) and; the extent of the protection offered by a legal non–conforming use status – specifically whether the extent and nature of the Appellant’s enlargement of the legal non-conforming use required an application to the Committee of Adjustment for a zoning variation.

[18] The Appellant was successful in his motion to reopen the appeal however, he was not reasonably diligent in his efforts to produce Exhibit H.

[19] The Appellant claimed that this document had been in his possession since May 2010. He said he received the document from the previous owners of his property, Sumit and Romika Mehra, in May 2010. The Appellant did not bring Exhibit H to the attention of the court at the Superior Court or Divisional Court appeals: Elbasiouni v City of Brampton, 2015 ONSC 6149 paragraphs 64 to 70.

[20] It would not have been necessary to consider the issue of the authentication of Exhibit H and its impact at this proceeding if the Appellant had been reasonably diligent.

[21] The Appellant sought to mislead and perpetuate a fraud on this court by producing a fraudulent document (Exhibit H) in support of his application to reopen the appeal and to obtain a different result on appeal as follows (See Elbasiouni v City of Brampton, 2015 ONSC 6149 paragraphs 71 to 97):

1. The Appellant produced Exhibit H as an authentic document. He said he received Exhibit H from Mr. Mehra. Mr. Mehra said he did not provide Exhibit H to the Appellant.
2. The Appellant said he showed Exhibit H to Mr. Terminesi and Mr. Mazzotta. They are City of Brampton employees. Mr. Terminesi and Mr. Mazzotta deny that the Appellant ever showed them Exhibit H.
3. The Respondents conducted an extensive search of City records and archives and determined that Exhibit H did not exist.

[22] In effect, the Appellant provided sworn information to the court that he knew was false. The Appellant’s conduct is unacceptable. He engaged the judicial process under false pretence.

[23] Elizabeth Corazzola is employed by the City of Brampton. She explained why Exhibit H was not an authentic document as follows: (1) It was not part of an amending by-law; (2) it showed a zone boundary to two adjacent tracts of land, both purported to belong to the same zone; and (3) there is no certified stamp from the office of the City of Brampton clerk certifying that Exhibit H is a certified true copy: Elbasiouni v City of Brampton, 2015 ONSC 6149, paragraphs 83 to 90.

[24] The Appellant proffered Exhibit H as an authentic document, which could potentially resolve the dispute. As a result, the Respondents expended considerable time and expense to determine whether Exhibit H was an authentic document: See Respondents Cost Outline, pages 10 – 11.

[25] The Appellant leveled unproven allegations of fraud and conspiracy against the Respondents: Elbasiouni v City of Brampton, 2015 ONSC 6149, paragraphs 95 to 97.

[26] The conduct of the Appellant unnecessarily prolonged the proceedings. He introduced a false document to support his motion to reopen the appeal. If Exhibit H was an authentic document it would have been a miscarriage of justice not to have reopened the appeal. In effect, one of the reasons advanced to the court for reopening the appeal was based on a falsehood.

[27] Absent Exhibit H, the appeal was clearly res judicata. It was an effort to advance a new argument on an already decided appeal. The decision in the first instance had been upheld by the Divisional Court. In effect, the most compelling reason for reopening the appeal was based on fraud. For all the foregoing reasons, I conclude that the Respondents were completely successful in this proceeding.

[28] It cannot be outside the reasonable expectation of the Appellant that a court proceeding, reopened on the basis of a fraudulent document, will attract a significant cost award by the court. The hours charged and rates set out by the Respondents, relative to the circumstances of this case and counsel’s year of call, are fair and reasonable.

[29] In this case there has been fraud and unproven allegations of conspiracy: The impact of an authentic Exhibit H were used to buttress an argument for reopening the appeal and was an important factor in the court’s decision to reopen the appeal. The reasonable conclusion was that a failure to consider a new document which could resolve the dispute will constitute a miscarriage of justice.

[30] After applying the Rule 57.01(1) factors to this case and noting the egregious nature of the Appellant’s conduct, I conclude that an elevated cost awarded is fair and reasonable in all the circumstances of this case: See Assent Incorporated v Fox 40 International Inc.. This is not a case where a cost award will adversely impact on access to justice issues, on the contrary, an elevated cost award is necessary to deter the Appellant from using the court system to adjudicate frivolous claims.

[31] The Respondent was the most successful party and is awarded full indemnity costs of in the amount of $50,976.96 at an interest rate of 3% per annum from the date of this judgment. The Appellant shall pay these costs forthwith.

Barnes, J.

Date: April 3, 2017

Schedule A

Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C43

Costs

131 (1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. R.S.O. 1990, c. C.43, s. 131 (1).

Schedule B

Courts of Justice Act

R.R.O. 1990, REGULATION 194

Rules of Civil Procedure

Rule 57 Costs of Proceedings

General Principles

Factors in Discretion

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.

Costs Against Successful Party

(2) The fact that a party is successful in a proceeding or a step in a proceeding does not prevent the court from awarding costs against the party in a proper case. R.R.O. 1990, Reg. 194, r. 57.01 (2).

Fixing Costs: Tariffs

(3) When the court awards costs, it shall fix them in accordance with subrule (1) and the Tariffs. O. Reg. 284/01, s. 15 (1).

Assessment in Exceptional Cases

(3.1) Despite subrule (3), in an exceptional case the court may refer costs for assessment under Rule 58. O. Reg. 284/01, s. 15 (1).

Authority of Court

(4) Nothing in this rule or rules 57.02 to 57.07 affects the authority of the court under section 131 of the Courts of Justice Act,

(a) to award or refuse costs in respect of a particular issue or part of a proceeding;

(b) to award a percentage of assessed costs or award assessed costs up to or from a particular stage of a proceeding;

(c) to award all or part of the costs on a substantial indemnity basis;

(d) to award costs in an amount that represents full indemnity; or

(e) to award costs to a party acting in person. R.R.O. 1990, Reg. 194, r. 57.01 (4); O. Reg. 284/01, s. 15 (2); O. Reg. 42/05, s. 4 (2); O. Reg. 8/07, s. 3.

Bill of Costs

(5) After a trial, the hearing of a motion that disposes of a proceeding or the hearing of an application, a party who is awarded costs shall serve a bill of costs (Form 57A) on the other parties and shall file it, with proof of service. O. Reg. 284/01, s. 15 (3).

Costs Outline

(6) Unless the parties have agreed on the costs that it would be appropriate to award for a step in a proceeding, every party who intends to seek costs for that step shall give to every other party involved in the same step, and bring to the hearing, a costs outline (Form 57B) not exceeding three pages in length. O. Reg. 42/05, s. 4 (3).

Process for Fixing Costs

(7) The court shall devise and adopt the simplest, least expensive and most expeditious process for fixing costs and, without limiting the generality of the foregoing, costs may be fixed after receiving written submissions, without the attendance of the parties. O. Reg. 42/05, s. 4 (3).