Court File and Parties

Court File No.: CV-14-503817 Date: 2019-03-18 Ontario Superior Court of Justice

Between: Soraya Emami, also known as Sheila Emami, Plaintiff – and – Maryam Furney and Alex Furney, Defendants

Counsel: Nancy J. Tourgis and Rajiv Joshi, for the Plaintiff Howard Krosner, for the Defendants

Heard: In writing

Judge: M. D. Faieta J.

Costs Endorsement

[1] The plaintiff seeks the repayment of several loans that she advanced to the defendants. The defendants have deny that some of the loans were made and allege that some of the loans have been repaid.

[2] On the day that this trial was to commence the Defendants produced documents that purportedly demonstrate repayment of the loans. I granted the Defendant’s request for leave to use these documents pursuant to Rules 30.08 and 53.08 on certain terms including the payment of the Plaintiff’s costs thrown away resulting from the adjournment of this trial and the further examination of the Defendants. See Emami v. Furney, 2019 ONSC 1238. This trial is now scheduled to commence on April 15, 2019.

[3] The parties have provided their written costs submissions.

[4] The plaintiff seeks her costs on a full indemnity basis in the amount of $16,709.88 inclusive of disbursements and costs. The plaintiff submits that costs thrown away are generally payable on a “full indemnity basis” because the purpose of such award is to indemnify a party for the wasted time for trial preparation arising from the adjournment related to work that will have to be re-done as a result of the adjournment: Caldwell v. Caldwell, 2015 ONSC 7715, paras. 8 and 11.

[5] The defendants submit that the plaintiff took no step unnecessarily as a result of the defendants’ delay and, as a result, they submit that costs should be fixed at one dollar and be payable in the cause.

[6] The fixing of costs is governed by s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The objective is to ascertain an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.).

[7] Elevated costs are warranted by operation of an offer to settle under Rule 49.10 or when a party has engaged in behavior worthy of sanction. A court may award full indemnity costs when an action is of exceptional public interest and special considerations justify the order: Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia, 2015 ONCA 732, at paras. 13-14. While other courts have expressed the view that costs thrown away should be awarded on a full indemnity basis, it is my view that the scale of such costs must be determined on a case by case basis applying the above principles.

[8] The plaintiff seeks the following costs:

• One day of trial preparation (of three days of trial preparation);
• The costs for February 20, 2019 being the date that the trial was scheduled to commence;
• The costs for February 21, 2019 as counsel was required to review the new documents and prepare for examinations of the Defendants;
• The costs for February 22, 2019 being the date of the examinations; and
• Written costs submissions.

[9] Having considered the submissions, it is my view that the costs related to the review of the new documents and preparation for the examination of the defendants do not form part of “costs thrown away” as such work will not have to be re-done as a result of the adjournment. In my view, the defendant’s failure to disclose numerous material documents upon which it intends to rely upon until the day of trial is deserving of sanction and thus an order of costs on a substantial indemnity basis is appropriate. The circumstances do not support an order for costs on a full indemnity basis notwithstanding that other courts. In assessing the reasonableness of the costs claimed, it is not apparent, given the amount at issue or the complexity of the claim, why the plaintiff is represented by two counsel at trial.

[10] I find that it is fair and reasonable for the defendants to pay $5,000.00, inclusive of disbursements and taxes, to the plaintiff as “costs thrown away”. Such costs shall be paid to the plaintiff by April 11, 2019.

Mr. Justice M. D. Faieta Released: March 18, 2019