Court File and Parties

COURT FILE NO.: 880/16 DATE: 2018 10 11 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AZIM RIZVEE, Plaintiff AND: STACEY NEWMAN, Defendant

BEFORE: Conlan J.

COUNSEL: Manjit Singh, Counsel for the Plaintiff Carlo Di Carlo, Counsel for the Defendant

HEARD: October 11, 2018

Endorsement on Motion

Corrected Endorsement: The text of the original judgment was corrected on November 20, 2018 and the description of the correction is as follows:

• Paragraph 7, the name ‘Razim’ is changed to read ‘Rizvee’.

I. Introduction

[1] Azim Rizvee (“Rizvee”), the Plaintiff, sued Stacey Newman (“Newman”), for many millions of dollars.

[2] Rizvee was a candidate for the Liberal Party in the most recent federal election. Newman, a journalist, published some unflattering remarks about Rizvee. She also tried to obtain a peace bond against him, which application was withdrawn by the Crown. A Statement of Claim alleging defamation and malicious prosecution ensued.

[3] In time, Newman moved for a dismissal of the entire action. A Judge dismissed the defamation claim, with a sizeable award of costs in Newman’s favour, but the action for malicious prosecution was permitted to continue.

[4] More time passed. Settlement discussions were ongoing. Newman’s counsel threatened to bring a motion for summary judgment to dismiss what was left of the action.

[5] New counsel for Rizvee served a Notice of Discontinuance. Rizvee wants to wholly cease the current proceeding against Newman.

[6] Should this Court allow the action to be discontinued? If so, on what terms, if any? And what about costs? Those questions confront this Court today.

II. The Law on Discontinuance

[7] As pleadings are closed, Rizvee needs leave of this Court to discontinue the action: 23.01(1)(b) of the Rules of Civil Procedure.

[8] Where an action is discontinued, any party may bring a motion (within a specified time period) regarding costs: 23.05(1).

[9] Both sides are content that this Court deal with the costs issue today, in the event that discontinuance is ordered.

[10] There is an important distinction between discontinuance and dismissal of an action. Only the latter prevents the plaintiff from litigating the issue again. That is precisely why subrule 23.05(1)(b) exists. Once pleadings are closed, in the absence of consent otherwise, the Court is empowered to order discontinuance on terms.

[11] Counsel for Newman refers to that concept as “discontinuance with prejudice”. That is one way to put it, however, it is more accurate to say that the Court is granting leave to discontinue the action but stipulating that the said discontinuance shall operate as a defence to any subsequent action.

III. Decision

[12] In my view, it is unreasonable for any plaintiff to think that s/he can commence a claim for millions of dollars, allege some of the most serious causes of action known to our civil justice system (defamation and malicious prosecution), and then (for whatever reason) wholly discontinue the action more than two years later while resting immune from any costs award and, further, while preserving his or her ability to litigate the case another day.

[13] At the same time, this Court is not eager to stand as an obstacle to having one less action to worry about. We are not short on stuff to do. Further, I agree with counsel for Rizvee that settlement is something to be encouraged, whenever and for whatever reason(s).

[14] Leave is hereby granted for Rizvee to wholly discontinue the action against Newman. This Court orders that the action is discontinued. This Court orders further that the discontinuance shall operate as a defence to any subsequent action.

[15] To expose Newman to round two of this malicious prosecution battle would be unjust; that is why the discontinuance must be on terms, both the above mentioned and costs in favour of Newman.

[16] As for quantum of costs, this decision is no different than any other. Something just, reasonable, and fair must be contemplated. The reasonable expectations of the parties must be considered. The factors outlined in the Rules, including 57.01(1), are important. Proportionality is key.

[17] I do not share the view of Rizvee’s counsel that the costs being claimed by Newman are unreasonable and/or were incurred unnecessarily. The evidence filed demonstrates, for example, that the summary judgment motion was a live issue well before the Notice of Discontinuance was served.

[18] I do agree with Rizvee’s counsel, however, that there appears something worth scrutinizing regarding Newman’s tally of nearly $18,000.00 in costs (full indemnity) just since the defamation claim was dismissed, when the only material subsequent events were Newman’s pleading and summary judgment motion (which relied very heavily on what was already before the Judge who dismissed the defamation claim), some settlement discussions, and the matter before the Court today.

[19] Many months ago, almost one year ago in fact, Newman offered to have the action dismissed with prejudice and with partial recovery of costs in an amount to be assessed.

[20] That was a very fair offer, in my view. Newman can do no worse than that now. She should, in fact, do better.

[21] More recently, last month, Newman offered to have the action dismissed with prejudice and with costs payable to her in the amount of $12,500.00. That was a decent offer.

[22] In all of the circumstances, costs are ordered in favour of Newman in the all-inclusive amount of $12,500.00, payable forthwith.

[23] I thank both counsel, Mr. Singh and Mr. Di Carlo, for their assistance. I wish both parties much success moving forward.

Conlan J. Date: October 11, 2018