COURT FILE NO.: CV-17-72439
DATE: 20171003
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SIMA ABDOLLAHPOUR
Applicant
– and –
HAMID ABDOLLAHPOUR AND SHAKIBA BANIFATEMI
Respondents
John E. Summers, for the Applicant
James Anderson, for the Respondent Hamid Abdollahpour
Kevin Kavanagh, for the Respondent Shakiba Banifatemi
HEARD: by written submissions
REASONS FOR decision
Parfett j.
[1] The parties have been unable to resolve the issue of costs and have referred the matter to me for determination.
Background
[2] The parties in this matter are family members who were involved in a dispute over which real estate agent should list the matrimonial home for sale. In late August, I issued a decision in which I indicated that the agent proposed by the Respondents should have the listing and that all remaining ancillary issues should be referred to a Master once the property was sold.
Positions of the parties
[3] The Applicant argues that the issue of costs should be postponed until the Master has completed her part of the matter. In addition, she suggests that the Respondent, Hamid Abdollahpour’s involvement was so minor that no costs should be awarded to him.
[4] The Respondent, Hamid Abdollahpour asks for costs on a partial indemnity basis.
[5] The Respondent, Shakiba Banifatemi argues that she made an Offer to Settle eight days prior to the hearing of the motion and that the first three paragraphs of the offer are consistent with the Court’s endorsement. The remaining paragraphs deal with matters that were referred to the Master. Consequently, it is this Respondent’s position that she is entitled to substantial indemnity costs after the date of the offer.
Analysis
[6] The Respondents were the successful parties in this motion. Consequently, the basic principle as set out in R. 57.01 of the Rules of Civil Procedure[^1] that a successful party should have their costs paid by the unsuccessful parties applies in this case. I see no reason to depart from this general principle.
[7] Rule 57.01(1) of the Rules of Civil Procedure provides that the Court has discretion in determining an award of costs and that a number of factors should be taken into consideration. In the context of this case, I consider the following factors to be applicable;
• 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;
• The complexity of the proceeding;
• The importance of the issues;
• Any other matter relevant to the question of costs.
[8] The overriding principle in fixing costs is fairness and reasonableness that reflects the reasonable expectations of the parties.[^2]
[9] The issue of who should list the property was severed from the remaining issues that were primarily financial in scope and better dealt with after the sale of the property. As a result, I see no reason not to deal with the costs of the motion now.
[10] The Respondent, Hamid Abdollahpour was represented at court by his counsel, who had prepared materials and made arguments. There is no reason not to award him costs of this motion even though his role was less than that of Ms. Banifatemi.
[11] I find that Ms. Banifatemi’s offer to settle was made in accordance with the requirements of R. 49 of the Rules of Civil Procedure. The offer attempted to resolve the entire matter, including those issues that were ultimately referred to the Master. However, I find that insofar as the offer dealt with the issues in this motion, Ms. Banifatemi was successful in obtaining a result that was at least equal to the proposal in her offer. Therefore, costs on a substantial indemnity basis will be awarded after the date the Offer was served.
[12] I have reviewed the Bills of Costs that were filed with the court at the conclusion of the motion. Taking into consideration the comments above and the factors set out in R. 57.01 of the Rules of Civil Procedure, I order the Applicant to pay $6,223.11 in costs, inclusive of disbursements and HST to Ms. Banifatemi and $2,844.00 in costs, inclusive of disbursements and HST to Mr. Hamid Abdollahpour.
The Honourable Madam Justice Parfett
Released: October 3, 2017
COURT FILE NO.: CV-17-72439
DATE: 20171003
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SIMA ABDOLLAHPOUR
Applicant
– and –
HAMID ABDOLLAHPOUR AND SHAKIBA BANIFATEMI
Respondents
REASONS FOR decision
Parfett J.
Released: October 3, 2017
[^1]: R.R.O. 1990, Reg. 194.
[^2]: See Boucher v. Public Accountant Council for the Province of Ontario (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3D) 291 (O.C.A.) and Larcade v. Ontario (Ministry of Community and Social Services) (2006) 2006 CanLII 17943 (ON SCDC), 211 O.A.C. 247 IS.C.J.(Div. Ct.)).