Court File and Parties

COURT FILE NO.: CV-17-571834 DATE: 20180808 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AON BENFIELD CANADA ULC, Plaintiff AND: AAMIR VAZIR F/K/A AAMIR MOHAMMAD, Defendant

BEFORE: LEDERER J.

COUNSEL: Matthew Gottlieb, for the Plaintiff Paul Lomic, for the Defendant

HEARD: June 13, 2018

Endorsement

[1] This endorsement considers an application for an award of costs for a proceeding that included the granting of an interim injunction, followed by an interlocutory injunction and finally the settlement of the action as a whole.

[2] The defendant, Aamir Vazir, was employed by the plaintiff, Aon Benfield Canada ULC (“Aon Benfield”), in what was described by counsel for Aon Benfield as a senior and responsible position. He had access to a range of highly sensitive commercial information, including complete access to the code and other design elements of “PathWise”, software referred to during the course of submissions as the “crown jewel” of the products of the plaintiff. Aon Benfield developed PathWise over a five-year period at a cost of approximately $7,000,000 USD. The source code for the PathWise software is proprietary to Aon Benfield and expected to generate $15,000,000 USD in annual revenue.

[3] On June 15, 2016, Aamir Vazir resigned from Aon Benfield. In August 2016, Aon Benfield learned that Aamir Vazir was promoting and selling software similar to PathWise. Aon Benfield arranged for a forensic specialist to scan the workplace computer utilized by Aamir Vizar while he was within its employ. Aon Benfield learned that, in the weeks leading up to his departure, Aamir Vazir had taken highly sensitive, proprietary and confidential information belonging to Aon Benfield. Before he left Aon Benfield, Aamir Vazir had attempted to wipe the computer clean by erasing its hard drives.

[4] With this information in hand, Aon Benfield moved quickly and comprehensively to respond to this improper incursion into its business and proprietary interests. On March 20, 2017, it issued a Notice of Action. On the same day, counsel for Aon Benfield attended in Civil Practice Court and obtained an urgent motion for an interim injunction. The following day, March 21, 2017, counsel appeared in court and supported by a complete record obtained that injunction.

[5] The night before the return of the motion for the interim injunction, Aamir Vazir was personally served with the materials and emails were sent to an address acknowledged to be his. Aamir Vazir did not respond to the emails and did not appear at the motion. Instead he compounded his wrongful actions by erasing at least two more computers that were in his possession and contained confidential and proprietary information misappropriated from Aon Benfield.

[6] Consistent with rule 40.02(1) of the Rules of Civil Procedure [1] the interim injunction was ordered to be effective for a period of 10 days, subject to further order of the court. The proceeding returned to court on April 4, 2017 for the purpose of obtaining an interlocutory injunction which would, among other things, extend the original injunction. In compliance with terms imposed through the interim injunction, in particular the provision of an affidavit sworn by Aamir Vazir, further disclosures were made and information delivered. As a result, new and further materials were provided in support of the motion for the interlocutory injunction. At that appearance Aamir Vazir was represented by counsel. Concessions were made. Aamir Vazir acknowledged that he had taken information that was confidential and belonged to his former employer. Counsel for Aamir Vazir, concerned about the implications for his client, sought a lengthy adjournment. This was refused. The parties, after some discussion with the court, considered the circumstances and a consent order was made. It continued the injunction and imposed terms that allowed Aon Benfield to secure what had been taken, locate those who had received the material and minimize any damage that had been caused.

[7] This work has continued. In time, a settlement was agreed to. It has finalized the injunction. The only term the parties were unable to agree on was the value of the costs to be awarded to Aon Benfield. By their agreement, the parties have left that to be determined by the court. Hence, the appearance in court and this endorsement.

[8] Aon Benfield seeks costs in the amount of $269,463.89. Counsel for Aon Benfield submitted that this request is, in every sense, reasonable. It is representative of costs on a partial indemnity scale. Of the total, $103,560.85 was for disbursements. Of this $95,762.45 was for technical support required to search the various computers, hard drives and other devices to which the software and data taken was transferred or on which it was otherwise located. This included an independent supervising solicitor, technical support he required and technical assistance for counsel for Aon Benfield. Counsel submitted that the remaining ($269,463.89 -$103,560.85) $165,903.04 sought as fees was, taking into account the work done in preparation for the two court appearances, the attendances and following up on the orders made, reasonable. I do not disagree. Even so the costs are high.

[9] Counsel for Aamir Vazir has made extensive submissions in opposition to the request that has been made. Typically, in circumstances such as this, any objections refers to issues reflecting on the constituents of the Bill of Costs: the hours spent, the number of lawyers and others involved, the seniority of counsel and the hourly rates charged; all in the context of the considerations outlined in r. 57.01 of the Rules of Civil Procedure. [2] In this case the more substantive of the submissions made in opposition to the request for costs reflect on the conduct of Aon Benfield in its response to the orders and the process.

[10] Three specific submissions were made. The first considers the significant responsibilities that fall on any party that seeks the sort of extraordinary order obtained in this case (the interim injunction) particularly in the absence of any representation on behalf of the party affected. It is a matter of privacy. Inevitably documents and material not relevant to the proceeding will be caught in the wholesale seizing of records. Some may be subject to privilege; others may be personal. How is the party that is the subject of the order to be protected? Counsel for Aamir Vazir submitted that the protection must come from the appointment of an independent supervising solicitor. In his view the failure to arrange for this as part of the interim order was a significant error which should now impact on any costs that are awarded.

[11] In making this submission counsel relied on Celanese Canada Inc. v. Murray Demolition Corp. [3] That case was different from this one. It concerned an Anton Piller order which allowed for an immediate search of the premises of the affected party. The order had been breached in a fashion that was directly contradictory to direction of the court. The order required the retaining of an independent supervising solicitor who was present when the search took place. Counsel for the affected party was also in attendance. That counsel later complained that as a result of the volume of the electronic material seized and the pace at which the search took place, they were not given sufficient time to review the material. The material that was seized was placed in an envelope and sealed. Contrary to the provisions of the order made by the court, no list of the seized documents was made prior to their removal from the searched premises. A lawyer representing Celanese subsequently directed that the seal be broken, without the knowledge of the party from whom it had been taken, and the material copied. A further copy was delivered to Celanese’s American counsel. Once this was discovered and requests made for the return of what had been taken, a motion was brought to disqualify the counsel who had improperly obtained the material. The case eventually found its way to the Supreme Court of Canada. The lawyers were disqualified.

[12] Nothing like that happened here. The order did not foresee entry into the premises where Aamir Vazir lived or worked. Rather it directed that he and those to whom he had transferred private and confidential material, deliver it to those acting for Aon Benfield. To the extent that personal emails were involved, the court specifically directed that the material they included was not to be accessed.

[13] In Celanese the Supreme Court considered the “Basic Protection for the Rights of the Parties”. [4] This included:

The order should appoint a supervising solicitor who is independent of the plaintiff or its solicitors and is to be present at the search to ensure its integrity. The key role of the independent supervising solicitor was noted by the motions judge in this case “to ensure that the execution of the Anton Piller order, and everything that flowed from it, was undertaken as carefully as possible and with due consideration for the rights and interests of all involved” (para. 20). He or she is “an officer of the court charged with a very important responsibility regarding this extraordinary remedy” (para. 20). [5]

[14] This has no direct application where there is to be no search. [6] What is evident is that the Supreme Court was concerned that the balance between the need to protect information without transgressing individual privacy and the applicable privileges be met:

A term setting out the procedure for dealing with solicitor-client privilege or other confidential material should be included with a view to enabling defendants to advance claims of confidentiality over documents before they come into the possession of the plaintiff or its counsel, or to deal with disputes that arise. … [7]

[15] In the case being dealt with the order made by the court responds and attempts to achieve the sought after balance. By way of example, it says:

THIS COURT ORDERS an interim and interlocutory injunction requiring the Defendant to immediately preserve the contents of any email account from or to which the Proprietary and Confidential Information was sent or received, including [two email addresses associated with Aamir Vazir are quoted] and within three (3) business days of this Order ( i.e. by the end of business on Friday, March 24, 2017) to provide to the Plaintiff’s agent, Integra Investigations Services Limited [address and email address of the individual agent is provided] (the “ Plaintiff’s Agent ”), the username and password of the same so that the Plaintiff’s Agent may preserve , but not access , the accounts of any such email account. In that regard the Plaintiff’s agent is directed to change the password to the email account and to not thereafter access the accounts without further Order of this Court. [8]

[Emphasis added]

[16] In this case, the order of the court provided the protections required by the circumstances. Even if I am wrong in this, the failure to appoint an Independent Supervising Solicitor, in company with the interim injunction, is not an error of the moving party such that it can reasonably be accountable as a consideration to reduce the costs that would otherwise be awarded.

[17] The second of the three points raised also concerns the actions taken on behalf of Aon Benfield. It is said that those actions extended beyond what was permitted by the order that put the interim injunction in place. It should go without saying that the Court anticipates that its orders will be adhered to. The situation is all the more sensitive when the competing value of protecting the privacy of the defendant is a concern. Counsel for Aamir Vazir referred to Genzservice Speditions Gmbh v. Jans:

What is not anticipated, by good citizens or by the Court, is that a solicitor attending premises under the authority of a court’s search order will go outside the terms of the order. [9]

[18] As suggested by the reference to a “search order” that case was different from this one. The problem there was summarized:

The supervising solicitor permitted the use of the search and listing orders in this case well beyond their terms. He did so under the direction of experienced counsel with conduct of the proceeding. In this regard, he appears not to have exercised the independent judgment, the prudence, the caution, and the respect for the rights of the defendants that the Court expects of a supervising solicitor acting as an officer of the Court. [10]

[19] In the case being decided, as noted (and emphasized) in the quotation at fn. 8 above, the plaintiff’s agent was to preserve but not access email accounts of the defendant. Again, the order did not provide for a search. Detail was added by a further endorsement made by another judge on March 24, 2017 (three days after the interim injunction was put in place). It said, in part:

1. With respect to paragraph 3 of the March 21, 2017 Order of M.D. Faieta J. (the “Order”), the parties agree that the Defendant will preserve (i.e. not use or access in any way) the email account associated with the email address [email address provided] but will not provide the Plaintiff’s Agent (as that term is used in the Order) with the password for this account until a protocol for accessing the password for said account can be agreed to or a further Order of the Court is made regarding that email account. The Plaintiff undertakes to not raise or argue in any way that the defendant has not complied with the March 24, 2017 deadline to provide the password of this email account.

2. The Plaintiff, Plaintiff’s counsel, and the Plaintiff’s Agent (as that term is used in the Order) undertake not to (a) access any content in the email accounts provided pursuant to paragraph 3 of the Order until a protocol is agreed to by the parties or further Order of the Court; and (b) access any content on the devices provided pursuant to paragraph 5 of the Order until a protocol is agreed to by the parties or further Order of the Court. [11]

[20] As it transpired in order to ensure preservation of the material those acting in response to the injunction required and asked for the consent of the defendant to access an iPhone which presumably included access to the email accounts in issue. That consent was provided by counsel for Aamir Vazir.

[21] In the circumstances, I cannot see how this can be used as a demonstration that the representatives of Aon Benfield acted improperly and beyond what was ordered by the interim injunction. Counsel for Aamir Vazir consented. This is not something that should be used to reduce an award of costs that otherwise would be made.

[22] The third of the concerns raised by counsel for Aamir Vazir suggests that hardware (computers and cellphones) were not returned to him as they should have been. By email dated June 18, 2017, a request was made to the Independent Supervising Solicitor by counsel for Aamir Vazir that the hardware and online accounts be returned. The Independent Supervising Solicitor indicated that he would require the consent of counsel for Aon Benfield. That consent was said not to be forthcoming. As a result the instruments and material were not returned.

[23] Counsel for Aon Benfield pointed out, and counsel for Aamir Vazir does not dispute, that the issue of when and how to these things were to be returned was subject to agreement between the parties.

[24] The interlocutory injunction which was the result of the appearance on April 4. 2017 (it was executed the following day) had a protocol attached to it as Schedule “A”. It provided for return of the instruments and material:

18. The ISS shall, as expeditiously as possible thereafter, return the Hardware, Devices, Email, Online Services or Materials that have been wiped of Proprietary and Confidential Information to Vazir

19. As soon and as is practicable following the receipt of the images and access described in paragraph 15 of this Protocol, the ISS shall, permit Vazir to attend at the offices of the ISS with his counsel along with the Expert for the purposes of providing Vazir with access to his LastPass, iPhone 6 and email account as necessary to allow Vazir to transfer, under the supervision and with the approval of the ISS, access to Online Services not contemplated by this Order to Vazir’s control, including his online banking accounts, Canada Revenue Agency Password, Nexus Login, iCloud, Facebook, LinkedIn and Rogers Security Home Alarm. For greater clarity, Vazir will not be permitted to gain access to any Online Service which is contemplated by this Order, or for any other purpose. [12]

[25] In time the action seeking a final injunction was settled. It provided for the return as follows:

5.1 Return of Access

(1) Within 30 days of the Consent Order, the Plaintiff will instruct the ISS to return physical control of the Hardware, Devices and Material and control of the Email and Online Services, wiped of Proprietary and Confidential Information, to the Defendant in the following manner:

(a) The ISS shall identify, with the Defendant’s assistance as needed, the Defendant’s personal photographs and home videos on or in the Hardware, Devices and Material;

(b) The ISS shall segregate the material identified pursuant to step (a);

(c) The ISS shall then wipe the Hardware and Devices, and Destroy the Material; and

(d) In order to allow the Defendant to gain access to his LastPass account, the ISS will access the Defendant’s personal e- mail account [the account is quoted] to click a link to disable two-factor authentication, and return to the Defendant access and control to all of the Email and Online Services with the exception of any AlgoCell email or website. The AlgoCell email accounts (i.e. emails with the domain algocell.com…) and website ( www.algocell.com) shall be wiped of all the content by the ISS and the subscription and/or accounts shall be cancelled by the Defendant. [13]

[26] The settlement agreement supplanted the protocol and provided for the return. This concern has been the subject of agreement and, presumably, negotiation between the parties at different times through the process. It provides no reason for a reduction in the costs which would otherwise be awarded.

[27] Counsel for Aamir Vazir made one further and more typical submission. In his view too much time was spent on some parts of the proceeding. For the purpose of considering this issue I rely on the following observation:

…The bills were prepared in accordance with the calculation of hours times dollar rates provided by the costs grid. While it is appropriate to do the costs grid calculation, it is also necessary to step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable. This approach was sanctioned by this court in Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.) at para. 4 where it said:

In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant. [14]

[28] In Shibish v. Honda of Canada Inc. this has been restated as follows:

It is not this Court’s function to second-guess successful counsel on the amount of time spent on the case or the allocation of counsel to the tasks at hand, unless the time spent is so grossly excessive as to be obvious overkill.[3] At the same time, the Court must determine the amount of costs that reflects more what the Court views as a fair and reasonable amount for the particular proceeding, having regard to the parties’ reasonable expectations, rather than what is reasonable as between solicitor and client.[4] [15]

[29] In the circumstances, recognizing the significance of the product to Aon Benfield, the manner in which it was taken, the awareness that potential customers within a global reach were being approached and the totality of the work necessary to protect the asset and minimize any prospective damage, the importance of situation to Aon Benfield is plain. Viewed from this perspective I am not prepared to find the hours worked to be excessive.

[30] In the paragraph following the last quotation the Court went on to say:

In that respect, it may very well be that a client will instruct its counsel to “pull out all the stops” and take whatever action is necessary to try to achieve success in a proceeding. While that may be the retainer as between a client and its solicitor, it does not follow that the losing party should be expected to pay for it or that it represents the fair and reasonable costs of a proceeding. [16]

[31] In this case counsel for Aon Benfield is clear in his view that Aamir Vazir, as a person directly involved in the management of PathWise, was well aware of its significance to Aon Benfield as his employer. He would have understood both the level of investment and the anticipated revenue it represented. On this basis he should have anticipated that Aon Benfield would respond quickly and comprehensively. Moreover, it was said that the demand for costs could reasonably have been much higher. It was accepted that costs were to be on a partial indemnity scale. The implication was that costs at a higher scale were warranted by the egregious conduct of Aamir Vazir. He “stole” something he knew was of great value and then attempted to sell it as his own. The costs claimed did not include time spent on the negotiations that led to the settlement.

[32] The next paragraph after the two just quoted notes the following:

In considering what amount is fair and reasonable in the circumstances of this case, I am also mindful of the principle that courts should seek to avoid inconsistency with comparable awards in like cases. It is important to balance the indemnity principle with the objective of access to justice and be careful of the “chilling effect” of an enormous costs award that is grossly disproportionate and therefore an “outlier” to similar case.[5] [17]

[33] Counsel for Aon Benfield referred to and relied on three cases:

• Omega Digital Data Inc. v. Airos Technology Inc. where an award of partial indemnity costs of $200,000 awarded to the successful party to an interlocutory injunction. [18]
• Dancap Productions Inc. v. Key Brand Entertainment Inc. where the court ordered costs to the successful party on a partial indemnity scale. [19]
• Brantford (City) v. Montour costs in the amount of $350,000 were awarded to the successful party. [20]

[34] Aon Benfield takes the position that these cases each support the level of costs it seeks in this case.

[35] Consistent with the direction that a judge should not second guess the hours spent and taking into account the perspective of Aon Benfield I am not prepared to find that hours spent are so excessive that on that account alone the value of the time they represent should be reduced. I am similarly unprepared to find that Aon Benfield “pulled out all the stops” such that the time spent and costs claimed range beyond what a person with the knowledge, understanding and position held by Aamir Vazir would have anticipated.

[36] As for the cases referred to, counsel for Aamir Vazir was at some pains to distinguish them from this one. In Omega Digital Data Inc. v. Airos Technology Inc. the $200,000 was assessed in respect of fees for counsel. This is to be compared to the $165,000 Aon Benfield seeks. As counsel for Aamir Vazir sees it more time and work were involved. In that case 31 affidavits were prepared by the successful party (the plaintiff), 17 cross-examinations were conducted and six hearing days required for the injunction motions. The unsuccessful party twice made motions to dissolve the injunction. This is not all that separates that case from this one. For one thing the determination of whether the costs should be paid was not decided. The fee was set but the issue of whether it was to be paid was left to the trial judge who would make the final determination of the issues between the parties. In the interim, the $200,000 were to be paid into court with the understanding that this was without prejudice to a re-evaluation of the scale of costs (and therefore I assume the actual value) by the judge following the trial. The judge dealing with the request for costs made no order that was to detract from “the ultimate discretion of the trial judge in this matter” [21]

[37] In Dancap Productions Inc. v. Key Brand Entertainment Inc. the costs of the two motions (the injunction and a motion to stay the result pending an appeal) were both “hotly contested”. [22] In the case presently being decided the interim injunction was ex parte (a decision made where all parties are not present) and the interlocutory injunction was resolved on consent. In Dancap costs awards were made to two successful parties: one received $200,000 and the other $135,000 on account of the injunction and one received a further $35,000 for the motion to stay the action. Unlike Omega Digital Data Inc. v. Airos Technology Inc. these costs were not just on account of fees but included disbursements and the applicable tax. They are not directly comparable.

[38] The circumstances in Brantford (City) v. Montour were substantially different than in Omega, Dancap or in this case. Local First Nations objected to certain proposed development in the city of Brantford. The development sites were “systematically blockaded”. Despite an interim injunction, this conduct continued. The hearing of the interlocutory injunction went on for 22 days. There was a court ordered mediation. Evidence was presented regarding "treaties, minutes, documents and letters confirming agreement in various subsequent meetings of the Six Nations and the Crown over many decades”. Two experts provided reports and were cross-examined. “The issues were significant to all parties and complex.” [23] The Applicant, the city of Brantford was entirely successful. The decision regarding costs considered the motives of the respondents. Was this public interest litigation seeking judicial resolution of an issue of public importance or was it to impose on private citizens the views of those opposed to the development? The court turned its mind to the role of amicus curiae [24] appointed to represent unnamed and unidentified parties who had taken part in the blockade and Ontario which was added to the proceeding largely to facilitate the court ordered consultation. The city of Brantford, as the Applicant, did not seek costs from these parties but the Respondents argued that they (Ontario and amicus) should be responsible “for a large portion of any costs awarded to the Applicant.” [25] It was only after all of these issues were accounted for that the cost award of $350,000 was made. This amount included disbursements and taxes.

[39] What these cases and the distinctions they include demonstrate is that while any costs award should attempt to avoid inconsistency with other cases each case is different and earlier cases cannot and should not detract from the discretion of the court in respect of the question of costs. [26] Each case must be decided on its own terms in respect of its particular circumstances.

[40] This is underscored by the cases relied on by Aamir Vazir. There were three: Johnson v. Helo Enterprises Inc., [27] 1259695 Ontario Inc. v. Guinchard [28] and Down Estate v. Racz-Down [29]. Each of them involved injunctive relief and each resulted in a costs award at or somewhat above $20,000 (respectively $20,500, $20,000 and $23,000). Johnson was dealt with largely on consent albeit after “extensive materials were filed by both parties”. [30] The issues in 1259695 Ontario Inc. were found to be complex and significant to the plaintiff and “…as to the obligation of confidentiality and solicitation of former clients”. [31] In Down Estate quantum was agreed to and found to be reasonable. The issue was whether costs should be awarded given that the determinations made did not finally resolve the dispute. A trial was anticipated. Nonetheless, in view of the conduct of the defendant to that point in the litigation costs were awarded to the plaintiffs. [32]

[41] How are the three paragraphs quoted from Shibish v. Honda of Canada Inc. to be applied in this case? I am not prepared to look behind the hours claimed. To my mind they fall comfortably within any range of what could be determined to be reasonable. The amount of the costs sought should have been foreseen by Aamir Vazir. In any event what is claimed is not demonstrative as an effort to “pull out all the stops”. The broad difference in the value of the costs awards demonstrated in these cases as compared to those relied on by Aon Benfield confirm that not much guidance is provided by the existing case law.

[42] Counsel for Aamir Vazir acknowledges that the approximately $20,000 awarded in each of the three cases on which he relies is too low. Still, he uses them as a foundation for what he submits would be a reasonable award. He proposes that the value of $20,000 be doubled and, on this basis $40,000 be awarded for legal fees to be added to disbursement of $100,000 resulting in costs of $140,000. This is too low. Much more time was spent and should be recognized than this value suggests. On its face the $269,463.89 claimed by Aon Benfield is not unreasonable. There is, however one further factor that bears consideration. It is raised in the second half of the third paragraph quoted from Shibish v. Honda of Canada Inc. I repeat it here:

It is important to balance the indemnity principle with the objective of access to justice and be careful of the “chilling effect” of an enormous costs award that is grossly disproportionate and therefore an “outlier” to similar case.

[43] I do not say that even with a detailed comparison to other cases with seemingly similar costs awards, this one would prove to be an outlier if the costs sought by Aon Benfield were awarded. I am, however, drawn to the concern that, in the circumstances, such an award could have the “chilling effect” referred to in the quotation. Counsel for Aon Benfield is adamant in his observation that the response and actions taken by and on behalf of Aamir Vazir caused more work to be required and costs to be increased. It seems to me that for the most part these reflect on the normal cut and thrust of a process that by its design is adversarial. On this level looking backwards is easy. Looking forward and deciding what to do is more difficult. [33] In particular, counsel for Aon Benfield points out that it was necessary to prepare a new and subsequent record to address the interlocutory injunction. If Aamir Vazir had accepted that the injunction would be continued this would not have been required. The request for a lengthy adjournment was inappropriate and should have been recognized as such. What is more significant is that once refused Aamir Vazir was prepared to enter into an agreement as to how the matter should proceed and subsequently to negotiate a comprehensive settlement. I do not accept that, as suggested by his counsel, Aamir Vazir is a young man who made a mistake. Taking confidential, proprietary and valuable information upon leaving employment is a wrong any employee, particularly one in a responsible position, should recognize and understand. On the other hand it seems apparent to me that upon being confronted Aamir Vazir could have chosen to act differently and caused much more damage that would have been more difficult to rectify or recoup. Far larger costs would have been expended in trying to. This is behaviour that although too late to stop the substantive result should be encouraged and recognized in part to avoid a chilling effect on others. I repeat the costs requested, while within the reasonable range of what should be expected, are high. Bearing this in mind, I reduce the costs requested for legal fees by $20,000.

[44] I award costs payable by Aamir Vazir to Aon Benfield in the amount of $249,463.89.

[45] Counsel for Aon Benfield seeks to have these costs payable forthwith. It seems unlikely that an individual in the position of Aamir Vazir could have the sum awarded readily available. Accordingly, I order that the costs awarded be paid no later than 90 days following the release of these reasons.

[46] Finally, I am grateful to counsel. While the disagreements run deep, on both appearances before me, this matter was handled with professionalism and courtesy as between counsel. It was a pleasure to deal with them both.

Lederer J. Date: August 8, 2018

Footnotes

[1] R.R.O. 1990 Reg. 194, r. 40.02(1): An interlocutory injunction or mandatory order may be granted on motion without notice for a period not exceeding 10 days

[2] Ibid, r. 57.01: 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.

[3] [2006] 2 SCR 189, 2006 SCC 36, 269 DLR (4th) 193; 352 NR 1; 215 OAC 266; 50 CPR (4th) 241

[4] Ibid at para. 40

[5] Ibid

[6] In Celanese the section on Basic Protection for the Rights of the Parties is followed by one considering “The Conduct of the Search”.

[7] Celanese Canada Inc. v. Murray Demolition Corp., supra (fn. 3) at para. 40. The quote continues on to point out that the process used in connection with search warrants may provide guidance and to quote the U.K. practice direction on the point.

[8] Order of Mr. Justice Faieta, dated Tuesday, March 21, 2017 (the Interim Injunction) at para. 3

[9] , [1995] B.C.J. No. 2481, [1996] 4 W.W.R. 362, 129 D.L.R. (4th) 733, 15 B.C.L.R. (3d) 370, 59 A.C.W.S. (3d) 886, 64 C.P.R. (3d) 129 at para. 81

[10] Ibid at para. 86

[11] Order Mr. Justice McEwen dated March 24, 2017 (at Schedule A paras. 1 and 3)

[12] Order of Mr. Justice Faieta, dated Tuesday, March 21, 2017 (the Interim Injunction) at paras. 18 and 20

[13] Settlement Agreement signed by Aamir Vazir on February 2, 2018.

[14] 1259695 Ontario Inc. v. Guinchard [2006] O.J. No. 40, 144 A.C.W.S. (3d) 809 at para. 16 quoting Zesta v. Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A. at para. 4

[15] 2011 ONSC 2989, 205 A.C.W.S. (3d) 635 at paras. 21 referring by footnotes to: [3] Risorto v. State Farm Mutual Automobile Insurance Company (2003), 64 O.R. (3d) 135, [2003] O.J. No. 990 (Sup.Ct.J.), at para. 9; Lawyers' Professional Indemnity Co. v. Geto Investments Ltd., [2002] O.J. No. 921, 17 C.P.C. (5th) 334 (Sup.Ct.J.), at para. 18; Tri-S Investments Ltd. v. Vong, [1991] O.J. No. 2292 (Gen. Div.), [4] Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 24

[16] Ibid at para. 22

[17] Ibid at para. 23 referring by footnote to: [5] Boucher v. Public Accountants Council for the Province of Ontario, supra, at para. 37; Andersen v. St. Jude Medical, Inc., [2006] O.J. No. 508 (Div.Ct.), at para. 22; and Berry v. Scotia Capital Inc., [2010] O.J. No. 5267 (Div.Ct.) at paras. 17, 18 and 19

[18] (1997), 33 O.R. (3d) 23, [1997] O.J. No. 6288, 29 C.C.E.L. (3d) 249 (Ontario Court of Justice (General Division)

[19] [2009] O.J. No. 1500](https://www.canlii.org/en/on/onsc/doc/2009/2009onsc1500/2009onsc1500.html) 176 A.C.W.S. (3d) 964 (ONSC)

[20] 2013 ONSC 1219, 226 A.C.W.S. (3d) 972

[21] Omega Digital Data Inc. v. Airos Technology Inc., supra (fn. 18) at para. 9

[22] Dancap Productions Inc. v. Key Brand Entertainment Inc., supra (fn. 19) at para. 10

[23] Brantford (City) v. Montour, supra (fn. 20) at paras. 8 and 9

[24] “friend of the court”: someone who is not a party to a case and may or may not have been solicited by a party, who assists a court by offering information and expertise

[25] Ibid at paras. 23-29

[26] The Courts of Justice Act R.S.O. 1990, c. C.43, section 131(1) provides: 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.

[27] 2013 ONSC 110, 225 A.C.W.S. (3d) 371

[28] [2006] O.J. No. 40](https://www.canlii.org/en/on/onsc/doc/2006/2006canlii40/2006canlii40.html), 144 A.C.W.S. (3d) 809

[29] 2010 ONSC 2575, 189 A.C.W.S. (3d) 41

[30] Johnson v. Helo Enterprises Inc. supra (fn. 27) at paras. 10 and 16

[31] 1259695 Ontario Inc. v. Guinchard, supra (fn. 28) at paras. 9 and 11

[32] Down Estate v. Racz-Down, supra (fn. 29) at paras. 13 and 14

[33] I distinguish from this the fact that having been served with the material for the interim injunction Aamit Vizar erased more material from the computers in his possession. Viewed from any perspective this was wrong and is not to be condoned.