Court File and Parties

COURT FILE NO.: CV-18-407 DATE: 20190612 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mohamed Khatau carrying on business as MAK Enterprises, Applicant - and – Apra Development Inc., Respondent

BEFORE: FRAGOMENI J.

COUNSEL: Christopher Crisman-Cox, for the Applicant James S. G. Macdonald and Melisa Rupoli, for the Respondent

HEARD: In writing

Costs Endorsement

[1] On April 11, 2019, I made the following order:

1. That MAK shall remove its property from Apra’s premises on or before April 30, 2019;
2. In the event that the property is not removed from Apra’s premises by April 30, 2019, Apra shall be permitted to take steps to remove MAK’s property from Apra’s premises and/or to sell same; MAK shall continue to compensate Apra for occupation rent up in the sum of $8,500 plus H.S.T. until the date MAK removes its property or Apra either stores or sells the property. MAK will be responsible for any costs incurred by Apra to remove and store the property;
3. In the event that it is necessary for Apra to sell the property, it shall make its best effort to realize fair market value for any of the items sold;
4. Apra shall serve and file its written submissions on costs of the motion and the application within 20 days. MAK shall serve and file its response within 20 days. Apra shall serve and file any reply within 10 days.

[2] The Respondent submits that it was successful at the motion and is, therefore, entitled to its costs.

[3] The Respondent points to the following factors in support of its position:

• the Applicant’s motion was unnecessary and without merit;
• the Applicant was in breach of the consent order of Miller, J dated December 11, 2018;
• paragraph 9 of the order of Miller, J stipulated that “each party shall bear its own costs of this Application provided that MAK vacates the premises by no later than 4:00 p.m. on February 28, 2019.”
• the Applicant had agreed to vacate the premises on numerous occasions but on each occasion failed to do so;
• the Applicant’s conduct in breaching the consent order of Miller, J was egregious and is worthy of reprimand by awarding the highest scale of costs;

[4] In all of these circumstances the Respondent submits that costs of the Motion and Application should be fixed on a full indemnity basis in the amount of $13,310.11.

[5] The Applicant submits that if costs are awarded to the Respondent it should receive partial indemnity costs as the Applicant’s behaviour did not meet the standard of being “reprehensible, scandalous or outrageous.”

[6] The Applicant sets out the following factors in support of its position:

• the Applicant made his best efforts to vacate;
• the Applicant brought the Motion out of genuine concern he would lose his livelihood if the Respondent sold the property he uses for his business;
• the Motion was not complicated.

[7] The Applicant concedes that the Respondent was substantially successful at the Motion but submits that partial indemnity costs for the Motion be set at no more than $4,000. The Applicant argues that the Respondent should not receive costs for the Application prior to the Motion. Prior to the Motion the parties negotiated a mutually agreeable consent order and neither party engaged in conduct that should attract costs consequences.

[8] At para. 19 of his costs submissions the Applicant states:

While the Applicant was largely unsuccessful in his motion, he brought the motion in an attempt to preserve his property. He tried his best to follow the terms of the Consent Order, but was not able to do so. This is not reprehensible, scandalous, or outrageous conduct. This was the conduct of an individual running a small business, and trying his best to reach a reasonable solution for vacating the Respondent’s property. As such, if the Respondent is to receive costs for the motion, the costs should be at the partial indemnity rate.

[9] I am satisfied that the Respondent is entitled to its costs of both the Application and the Motion. Paragraph 9 of Miller J’s order makes it clear that each party would pay their own costs if MAK vacated the premises by February 28, 2019 at 4:00 p.m., which did not happen.

[10] With respect to the Motion, the Respondent was successful and is entitled to costs.

[11] I am not, however, satisfied that costs ought to be fixed on a full indemnity basis or substantial indemnity basis. I am prepared to fix costs on a partial indemnity basis for the reasons set out by the Applicant.

[12] I also take into account that the Order of Miller, J. was made on consent.

[13] Finally, I take into account the fact that this Motion itself was not complicated and hearing of the Motion was not unduly lengthy.

[14] I have reviewed the Respondent’s costs outline. The disbursements are $738.58 and are reasonable. The partial indemnity fees are set out at $7,787.68. Both James S.G. Macdonald and Melisa Rupoli worked on this file. It is difficult to determine if there was duplication of services on certain of the fee items. Considering the nature of the Motion, it does not appear that it was necessary for both lawyers to be involved. On that basis, I am prepared to reduce the fees to some degree.

[15] The total number of hours expended on this matter is about 44 hours. Again, considering the nature of the Motion and the time to argue the Motion, I find this amount of time excessive. On this basis as well, I am prepared to reduce the fees to some degree.

[16] In all of these circumstances, I am prepared to fix costs of the Application and Motion on a partial indemnity basis in the all-inclusive sum of $7,500.00.

[17] Order to issue:

1. that the Applicant pay to the Respondent its costs fixed in the all-inclusive sum of $7,500.00.

FRAGOMENI J. DATE: June 12, 2019