Superior Court of Justice - Ontario

COURT FILE NO.: CV-10-416306

MOTION HEARD: May 30, 1019

RE: Pararajasingam

AND:

Ibrahim et al.

BEFORE: Master Abrams

COUNSEL: M. Katzman, for the Plaintiff

A. Suboch, for Sally Ibrahim, Defendant

HEARD: May 30, 2019

REASONS FOR DECISION

[1] Having considered counsel’s submissions as to costs, and there being no basis upon which to award anyone substantial indemnity costs, the plaintiff shall receive his costs thrown away in the amount of $6,262.26 (inclusive of HST and disbursements)—payable by August 31/19.

[2] I accept that there was no automatic bar to Mr. Wilson cross-examining Ms. Ibrahim (see, for instance, GMAC Leaseco Limited v. 1348259 Ontario Inc., 2004 CarswellOnt 151 (S.C.J.), at para. 17), but I also recognize that the issue was not a clear and unequivocal one (considering, for instance, the amount of time spent, by counsel, researching the issue--as reflected in the parties’ respective costs outlines).

[3] And whereas it is true that comment was made as to Mr. Katzman acting as counsel on the motion and Mr. Wilson cross-examining, I understand why there might have been some confusion on the part of Mr. Suboch as to who would be doing what when Mr. Suboch received Mr. Wilson’s supplementary affidavit on the day before Ms. Ibrahim was scheduled to be cross-examined. Further, with counsel’s views as to what constitute ‘contentious issues’ being divergent, it was not unreasonable for Mr. Suboch to ask that someone other than Mr. Wilson cross-examine Ms. Ibrahim.

[4] As for Ms. Ibrahim’s motion having been rendered moot by virtue of the plaintiff agreeing to limit his claims to policy limits, I agree with Mr. Katzman when he says that this issue could have been canvassed earlier.

[5] Ms. Ibrahim’s motion, reviewed and considered by me, was not certain to succeed (and is deemed abandoned), with the plaintiff having been put to unnecessary expense for which I think him entitled to some recompense.

[6] Given the winding path down which the parties and their counsel travelled before Ms. Ibrahim’s motion was abandoned and Ms. Ibrahim’s cross-examination ended (as discussed above), and having regard to the nature and moderate complexity of the issues as well as the parties’ reasonable expectations (with Mr. Suboch rounding down his own costs, for my consideration, to some $7,500.00) and, to all, applying a lens of proportionality, I am awarding the plaintiff approximately ½ of the fees for which he seeks reimbursement and am reimbursing all of the disbursements incurred by him.

June 10, 2019 ________________________

Master Abrams