Court File and Parties

CITATION: Abdul-Hamid v. Fast & Quick Financial Services Inc., 2017 ONSC 6505

COURT FILE NO.: 228/17

DATE: November 1, 2017

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: AHMAD ABDUL-HAMID, responding party (plaintiff)

AND:

FAST & QUICK FINANCIAL SERVICES INC., NIRPREET THIND, sometimes known as NIRPREET SINGH THIND and POPULAR TRUCK WASH, moving parties (defendants)

BEFORE: VOGELSANG J.

COUNSEL: Scott E. Hamilton for the moving parties (defendants) Ahmad Abdul-Hamid, the responding party (plaintiff) in person

HEARD: written submissions filed by the defendants

ENDORSEMENT on costs

[1] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 clearly sets out the court’s discretion concerning the “costs of and incidental to a proceeding or a step in a proceeding.” The factors structuring the exercise of that discretion are set out, without exclusivity, in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as follows:

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.

[2] That the issue of costs is important to litigants cannot be disputed, but access to justice is of great consequence as well and must be preserved. Carthy J.A. said in Bell Canada v. Olympia & York Developments Ltd., 1994 239 (ON CA), 1994 CarswellOnt 520 (Ont. C.A.), at para. 15:

The courts must also be careful not to become too paternalistic with litigants or to unnecessarily discourage recourse to the trial as a forum for the resolution of disputes. Concern is properly directed to unreasonable conduct in the course of litigation which leads to unnecessary or prolonged trials. However, the judicial system is here to serve the public and no barriers to access should be imposed by warnings as to cost consequences arising from the court's assessment of how litigants should conduct their business.

[3] That being said, this last proceeding commenced by the plaintiff was plainly doomed (as I said in my brief reasons), being an attempted multiplicity of actions, a plain abuse of process, a statute-barred suit and an obviously vexatious proceeding. Clauses 57.01(e), (f) and (i) are engaged and of considerable importance in this costs question.

[4] The defendants’ submission that the quantum of costs sought is within the reasonable expectation of the parties is not countered; indeed, I agree that the motion, by its very nature, was labour and time intensive. It required careful scrutiny of material and extensive correspondence from the unrepresented plaintiff and his agents to ensure that sufficient evidence was included and available to advance the defences raised.

[5] I think I must step back, consider both the plaintiff’s unreasonable conduct and the result achieved and try to view the costs issue in a flexible and balanced way, recognizing the wide discretion afforded by s. 131: see Moon v. Sher, 2004 39005 (ON CA), [2004] O.J. No. 4651, 246 D.L.R. (4th) 440 (C.A.). As well, the costs award must represent a fair and reasonable amount that should be paid by the plaintiff, rather than any exact measure of the actual costs to the defendants: Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.).

[6] To my mind, an appropriate award of costs to the defendants is $7,500 including recoverable disbursements and H.S.T. That figure reasonably reflects the time and effort warranted by this motion: Gratton-Masuy Environmental Technologies Inc. (c.o.b. Ecoflo Ontario) v. Building Materials Evaluation Commission, 2003 8279 (ON SCDC), [2003] O.J. No. 1658 (Div. Ct.). The costs ordered are payable in 30 days. As with my original reasons, approval of the formal costs order as to form and content is dispensed with.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: November 1, 2017