Court File and Parties

COURT FILE NO.: CV-16-560863 DATE: 20180815 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MUSLIM GREEN CEMETERIES CORP., Applicant/Moving Party AND: TORONTO MUSLIM CEMETERY CORP., Respondent/Respondent

BEFORE: Madam Justice V.R. Chiappetta

COUNSEL: John Longo/Patrick Copeland, for the Applicant Shahzad Siddiqui, for the Respondent

HEARD: In Writing

Endorsement

[1] The Applicant brought a motion for contempt. The primary issue on the motion was whether the Respondent ought to be compelled to execute certain applications (the applications) of the Bereavement Authority of Ontario (the BAO) pursuant to Justice Dow’s judgment dated November 22, 2016 (Justice Dow’s judgment). I ordered that the Respondent was required to execute the applications with 48 hours of being provided with written confirmation from the BAO that both forms were necessary to apply for a license. The Applicant now seeks its costs of the motion in the amount of $26,157.02 on a substantial indemnity scale or, alternatively, for $18,154.92 on a partial indemnity scale.

[2] The Respondent submits that costs should be awarded against the Applicant as they “engaged in misconduct when it improperly put settlement correspondence before the Court and engaged in vexatious proceedings when it proceeded with a contempt motion instead of communicating or having a joint meeting with the BAO.” I disagree with the Respondent. In my view, the Applicant has engaged in no conduct sufficient to warrant a costs award against it in accordance with Rule 57.01(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. I also disagree with the Applicant. I do not agree that it is entitled to costs of the application. As noted in my endorsement at pages 5-7 the Respondent’s failure to comply with the order of Justice Dow dated November 22, 2016 was in significant part related to the Applicant’s failure to accurately reflect its intentions in receiving the Respondent’s consent to one of the documents required by the Bereavement Authority of Ontario. The “typo” as referred to by the Applicant was significant as it stated the Applicant’s intention to establish a cemetery as opposed to increase its capacity/expansion. There was never an agreement between the parties that a cemetery would be created, only that the operation of phase 6 represented an expansion. One of the forms as presented to the Respondent for its consent therefore was not accurate such that the Respondent was within its right not to provide its consent. For this reason I did not find the Respondent in contempt. For this reason, and considering the factors as set out at Rule 57.01(1) of the Rules, in my view it is a fair and reasonable exercise of my discretion to make no costs award on the Application.

[3] Separately, it should be noted that the applications now executed should be released from escrow as the question posed to the BAO by counsel for the Applicant reflected the intent of my order.

V.R. Chiappetta J. Date: August 15, 2018