CITATION: Luu v. Abuomar, 2017 ONSC 7119

COURT FILE NO.: 3959/17

DATE: 2017-11-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: XUAN LUU, Applicant

AND:

MOHAMED ABUOMAR also known as MOHAMED ABU-OMAR also known as MOHAMED A.R. ABUOMAR also known as MOHAMED A. ABU-OMAR, Respondent

BEFORE: Gray J.

COUNSEL: Timothy Morgan, Counsel for the Applicant Mohamed Abuomar, Self-represented

ENDORSEMENT

[1] In my endorsement dated November 6, 2017, I invited the parties to file written submissions with respect to costs. Those submissions have now been filed.

[2] I also invited counsel for the applicant to furnish for my consideration a draft judgment.

[3] Counsel for the applicant submits that costs should be awarded on a full indemnity basis. Counsel submits that the appointment of a receiver is an enforcement proceeding, and he submits that in an earlier decision, Justice Skarica ordered that costs of enforcement proceedings be paid on a solicitor and client basis.

[4] Counsel for the applicant submits that costs should be awarded in the amount of $17,635.83, on a full indemnity basis. He submits that substantial indemnity costs would amount to $15,914.04, and partial indemnity costs would amount to $10,748.70.

[5] Mr. Abuomar submits that there should be no order as to costs, since he relied on my earlier ruling and assumed that the application could not succeed based on the principles of res judicata.

[6] Mr. Abuomar submits that the amount claimed is excessive. He submits that if costs are awarded, they should be awarded in an amount not to exceed $1,500.

[7] I do not agree with the applicant that costs should be awarded on a full indemnity basis, or even on a substantial indemnity basis. This is not the sort of “enforcement” costs that are encompassed within Justice Skarica’s earlier decision.

[8] Mr. Abuomar took a legal position on the application that he was entitled to take, and I see no basis for awarding anything more than costs on a partial indemnity basis.

[9] I think the amount of $10,000, all-inclusive, is reasonable, and I will award that amount as costs which I will include in the judgment.

[10] Counsel for the applicant enclosed, with his costs submissions, a rather simple draft judgment appointing Rumanek & Company Ltd. as a receiver in aid of execution. Subsequently, by correspondence dated November 22, 2017, he enclosed a significantly different draft judgment, consisting of 18 paragraphs on eight pages, which is the draft model precedent used by the Commercial Court in Toronto.

[11] There are receiverships and there are receiverships. This is not a receivership in connection with a large commercial enterprise. Rather, it is a simple receivership to collect a rather modest debt from an individual. The only asset, of which I am aware, that Mr. Abuomar owns is his undivided one-half interest in the home he owns jointly with his wife. The difficulties in levying execution on Mr. Abuomar’s undivided one-half interest are what has given rise to the necessity for the appointment of a receiver.

[12] In my view, most of the provisions in the second draft judgment are wholly unnecessary, and are inappropriate for the rather simple receivership that is contemplated here. The only action by the receiver that can realistically be foreseen is an application under the Partition Act.

[13] I have added a provision to the first draft judgment that specifies that the receiver shall incur no liability in carrying out the provisions of the order; that the receiver and its counsel shall pass their accounts in this court; and that the receiver may apply for directions. If it turns out that there are other steps that the receiver believes it can and should take, it is open to the receiver to apply to the court for further directions.

[14] If it turns out that the receiver is unwilling to act based on the judgment I have signed, I can only suggest that the applicant select another receiver who is willing to act under the judgment I have signed.

[15] I attach a photocopy of the issued and entered judgment I have signed. The original can be picked up from Courts Administration in Milton.

Gray J.

Date: November 28, 2017