Court File and Parties

COURT FILE NO.: CV-14-506305 DATE: 20170622 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JAMSHID HUSSAINI, NEELOFAR AHMADI and HOMELIFE DREAMS REALTY INC., Plaintiffs (Defendants to the Counterclaim) AND: ALAIN CHECROUNE and 1482241 ONTARIO LIMITED, Defendants (Plaintiffs by Counterclaim)

BEFORE: Mr. Justice P.J. Cavanagh

COUNSEL: Enzo D. Iorio and Nahla Khouri for the Plaintiffs (Defendants to the Counterclaim) Christopher Stanek and Natasha Carew, for the Defendants (Plaintiffs by Counterclaim)

HEARD: Submissions in Writing

Costs Endorsement

[1] On this motion, the defendants sought summary judgment dismissing the action as well as (i) an order discharging the certificate of pending litigation registered against title to the property in question, (ii) an order setting aside the interlocutory order of Whitaker J., and (iii) summary judgment against the plaintiff Homelife Dreams Realty Inc. on the counterclaim. In my decision released on April 19, 2017, I dismissed the defendants’ motion.

[2] The plaintiffs submit that, as the successful parties, they should be awarded costs of this motion. The plaintiffs request costs on a partial indemnity scale in the amount of $55,011.67.

[3] The defendants submit that their motion for summary judgment was reasonably brought and resulted in a narrowing of the issues in dispute. They submit that the decision on the motion did not contain any binding legal determinations in favour of the plaintiffs and, therefore, that cause should be awarded in the cause.

[4] The defendants also submit that the amount of costs requested by the plaintiffs is unreasonably high. They submit that costs should be awarded on the basis of 60%, not 70%, of the actual rates set out in the plaintiffs’ costs outline. They submit that the amount of time spent by plaintiffs’ counsel was unreasonable and disproportionate and, in particular, (i) too much time was spent on research, (ii) time spent on preparation of responding material was excessive, (iii) time spent by second counsel should be reduced for some services where senior counsel performed the advocacy role, and (iv) time spent in relation to an unsuccessful request for an adjournment should be omitted.

[5] Section 131(1) of the Courts of Justice Act provides that 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. The discretion to award costs must be exercised in accordance with the facts and circumstances of the case and in accordance with the factors set out in r. 57.01(1) of the Rules of Civil Procedure. The court may consider 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. Overall, the court is required to consider what is fair and reasonable, with a view to balancing compensation to the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), (2004), 71 O.R. (3d) 291 (Ont. C.A.).

[6] The plaintiffs were successful on the motion. The amount at issue in this action is significant. The action involves a claim to ownership of a commercial property in Toronto through a share sale. The purchase price of the shares of the company that owns the property was based on a value of $15 million. The motion was important to the parties. If the defendants had been successful on their motion for summary judgment, the plaintiffs’ action would have been dismissed. There was detailed evidence presented concerning the factual background to the issues on the motion and the factual and legal issues were somewhat complex. In addition to the motion for summary judgment dismissing the plaintiffs’ action, relief was sought in relation to three other issues, which added to the complexity of the motion.

[7] I agree that, in this case, the partial indemnity rates should be 60% of the full indemnity rates. I do not agree that the time claimed for research, preparation of responding materials, or time for second counsel, should be reduced. I do not agree that time spent on the adjournment issue should not be allowed.

[8] I exercise my discretion to award costs of the motion to the plaintiffs on a partial indemnity scale. I fix costs of the motion for fees at $41,049 and for disbursements at $792.40. These amounts, with HST, total $47,280.78. Costs to be paid within 30 days.

Mr. Justice P.J. Cavanagh Date: June 22, 2017