NEWMARKET COURT FILE NO.: CV-18-136979-00 DATE: 20190115 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Seyed Hossein Hessami Booshehri Plaintiff/Moving Party – and – Alvart Simovonian Defendant/Respondent

S. Juzkiw, for the Plaintiff/Moving Party F. Heald and A. Simovanian for the Defendant/Respondent

HEARD: In Writing

COSTS DECISION ON INTERIM INJUNCTION MOTION

SUTHERLAND J.:

Introduction

[1] On September 17, 2018, I released my decision granting the defendant’s motion to not continue and terminate the temporary injunction granted in the Order of DiTomaso J. dated August 15, 2018.

[2] In my decision, I indicated that if the parties could not agree on costs, I would accept written submissions. The cost submissions of the defendant were received on October 16, 2018. These submissions were served upon the plaintiff counsel by email on October 16, 2018.

[3] Having not received the submissions from the plaintiff, I released an endorsement dated November 19, 2018 providing the plaintiff and plaintiff’s counsel until December 17, 2018 to serve and file their respective submissions. I received the plaintiff’s written submissions later in the day on November 19, 2018. I received the plaintiff’s counsel written submissions on December 17, 2018.

[4] Below is my decision on costs.

Legal Principles

[5] Pursuant to the Rules of Civil Procedure, namely Rule 57.01(2), a presumption exists that costs should be awarded to the successful party. Rule 57.01 sets out factors the court may take into consideration when the court exercises its discretion to award costs.

[6] Rule 57.01(4) indicates that nothing in Rules 57.02 to 57.07 affects the court’s ability to award costs under section 131 of the Courts of Justice Act. The subrule sets out five ways the court can award costs.

[7] The Court of Appeal in the decision of Serra v. Serra, 2009 ONCA 395 confirmed that the modern costs rules are designed to encourage and foster three fundamental purposes, namely to partial indemnify successful litigants for the costs of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the award should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party.

[8] Further, the Court of Appeal also indicated in the decision of Boucher et al. v. Public Accountants Council for the Province of Ontario, 2004 ONCA 14579 and Delellis v. Delellis, 2005 ONSC 36447, that when assessing costs it is not simply a mechanical exercise. It is not simply a calculation of hour’s spent and hourly rates but the court is to take a proportional methodology. The overall objective is to fix an amount of costs that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case.

[9] In Cimmaster v. Piccione, 2010 ONSC 846, Gray J. stated, at para19:

…The principle of proportionality is important, and must be considered by any judge in fixing costs. … However, in my view, the principle of proportionality should not normally result in reduced costs where the unsuccessful party has forced a long and expensive trial. It is cold comfort to the successful party, who has been forced to expend many thousands of dollars and many days and hours fighting a claim that is ultimately defeated, only to be told that it should obtain a reduced amount of costs based on some notional concept of proportionality. In my view, as was the case in Pitney Bowes, the concept of proportionality appropriately applies where a successful party has over-resourced a case having regard to what is at stake, but it should not result in a reduction of the costs otherwise payable in these circumstances. [Emphasis added.]

[10] Rule 49 of the Rules of Civil Procedure deals with offers to settle. Rule 49.03 sets out the time for making an offer to settle. Rule 49.10 sets out the consequences for failure to accept an offer to settle by either the plaintiff or the defendant. Rule 49.13 provides the court with discretion to take into account any offer to settle made in writing, the date the offer was made and the terms of the offer.

Position of the Parties

Defendant

[11] The defendant requests costs on a substantial indemnity basis in the amount of $76,459.20 inclusive of HST and disbursements to be paid jointly and severally by the plaintiff and the plaintiff’s counsel.

[12] The defendant argues that she was the successful party and as such, costs should follow the event. The defendant submits that conduct of the plaintiff and his “team” throughout the dispute was reprehensible, scandalous and outrageous. The plaintiff’s conduct showed an unnecessary lengthening of the proceedings by using the mechanism of an ex parte motion; unreasonable refusal to admit: (i) that the Agreement of Purchase and Sale makes no reference to easement rights; (ii) that the Well record supplied by the plaintiff is false; (iii) that the plaintiff was put on notice on November 18, 2017 of the desire of the defendant to cut the water supply. Further, the defendant contends that paragraphs of the plaintiff’s affidavit was misleading. The conduct of the plaintiff, the defendant contends, was an “enormous waste of resources and time” for the justices that heard the dispute. The conduct of the plaintiff justifies costs on a substantial indemnity basis and the conduct of plaintiff’s counsel justifies a finding that Rule 57.07 applies. Plaintiff’s counsel failed to bring all applicable law to the judge hearing the ex parte motion, provided poorly drafted material which included several errors and repetition and provided “sloppy presentation”.

Plaintiff and Plaintiff’s Counsel

[13] The plaintiff and his counsel disagree with the contentions of the defendant. The plaintiff argues that success was divided and thus, costs should be in the cause. If the plaintiff is successful at trial it would be inconsistent to have costs paid by the plaintiff on these motions given that the injunction was not continued “based on likelihood of success.” The plaintiff contends he had no choice but to bring an ex parte motion because the sole source of water to his property was cut off. The plaintiff argues that the defendant acted unreasonably. The defendant brought unnecessary motions that were heard by Vallee J. and McCarthy J. which resulted in the increase of legal costs. The plaintiff further argues that the amounts claimed by the defendant are excessive and duplicitous. The defendant had two separate counsel, one of which was her son. The time claimed by the defendant for costs do not make sense if one considers the timing of events and the number of hours in the day. The plaintiff claims in his bill of costs that the amount for worked performed for the two motions heard by me is $4,145, on an actual indemnity basis.

[14] The plaintiff’s counsel contends that there is no basis in fact or in law for an order based on Rule 57.07 that he be liable for any costs award from the adjudication of the two motions.

Analysis

[15] I agree with the submission of the defendant that she was the successful party. The defendant was successful in convincing the court that the interlocutory injunction should not be continued. No offers to settle either of the motions was served by the parties.

[16] The plaintiff is presumptively responsible to pay reasonable costs incurred by the defendant.

[17] Notwithstanding the submissions of the plaintiff, I am convinced that the presumption should apply in the circumstances of this case.

[18] I am not persuaded that costs should be on a substantial indemnity basis as urged by the defendant. I do not agree with the submission that the plaintiff acted unreasonably or as the plaintiff’s conduct as described by the defendant was “reprehensible, scandalous and outrageous.” It seems to me that counsel for the defendant allowed the animosity between the parties to coat their written submissions. The fact that one of the counsel was the son of the defendant, it appears to me, prevented the detachment required by counsel to advocate for one’s client.

[19] Thus, I find that the defendant should have her costs fixed on a partial indemnity basis.

[20] Having reviewed the cost outline submitted by the parties, I find the costs submitted by the plaintiff to be deliberately low and the costs submitted by the defendant to be over resourced. I find troubling that the defendant is requesting 150.5 hours, over three straight working weeks of 40 hours a week. I do not find these hours reasonable given the issues involved on these motions. The issues were not complicated whatsoever.

[21] Keeping in the mind the instructions from the Ontario Court of Appeal that it is not a mechanical task of multiplying hours with hourly rates claimed and that the overall objective is to fix an amount of costs that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, I fix costs payable by the plaintiff to the defendant as follows: fees in the amount of $15,000 plus HST and disbursements in the requested amount of $313.01.

Rule 57.07

[22] The defendant requests that the plaintiff’s counsel be jointly and severally responsible to pay the costs awarded. A court should only award costs against a solicitor personally in the rarest of circumstances. As the Supreme Court of Canada stated in Young v. Young “extreme caution” should be utilized in awarding costs against a solicitor personally.

[23] The Ontario Court of Appeal in Galganov v. Russell (Township), 2012 ONCA 410 found that a court’s authority to award costs against a counsel personally may be found in either Rule 57.07 or in the court’s inherent jurisdiction.

[24] In Fontaine v. Canada (Attorney General), 2018 ONSC 4195, Perell J. dealt with the request of Canada to order costs against a counsel personally. At paragraph 46 of the decision, Perell J. quoted Justice Gascon from the Supreme Court of Canada decision of Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2016 SCC 26, at paragraph 29:

29. In my opinion, therefore, an award of costs against a lawyer personally can be justified only on an exceptional basis where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice. This high threshold is met where a court has before it an unfounded, frivolous, dilatory or malicious misconduct on his or her part, that is deliberate. Thus, a lawyer may not knowingly use judicial resources for a purely dilatory purpose with the sole objective of obstructing the orderly conduct of the judicial process in a calculated manner.

[25] In my view based on either Rule 57.07 or under the court’s inherent jurisdiction, I can exercise my jurisdiction to award costs against plaintiff’s counsel, if I deem it appropriate.

[26] I find no basis for awarding costs against the plaintiff’s counsel. I do not find that the conduct of the plaintiff’s counsel was “unfounded, frivolous, dilatory or malicious.” There is no basis, I find, that the conduct of plaintiff’s counsel can be characterized as “purely dilatory with the sole objective of obstructing the orderly conduct of the judicial process in a calculated manner.” Plaintiff’s counsel is obligated to advocate for his client. That is precisely what he did. The fact that the defendant did not agree with the position of the plaintiff and finds the allegations of the plaintiff outrageous does not, in my opinion, reach the high threshold, as enunciated by Justice Gascon.

[27] The defendant did not direct the court to any conduct of plaintiff’s counsel that met this threshold and I do not find the conduct of plaintiff’s counsel in this case comes anywhere near to reaching the required high threshold.

[28] Accordingly, I reject this submission of the defendant and refuse to exercise my discretion to award costs against the plaintiff’s counsel.

When should the plaintiff pay the cost awarded?

[29] The defendant requests that costs should be payable within 30 days. The plaintiff requests that costs should be in the cause.

[30] I am cognizant that the Rules contemplate that costs should be made payable in 30 days, unless the court orders otherwise.

[31] In the circumstances of this case, I do not find that there is a reason to order otherwise.

[32] The plaintiff’s position on the motion to continue the injunction was contrary to the pronouncements of the Ontario Court of Appeal in dealing with water wells. The plaintiff could have taken a position that was more in line with the pronouncements but failed to do so.

[33] The defendant did incur costs, as I have already found, in defending the ex parte injunction obtained by the plaintiff.

[34] There has been no evidence provided that the plaintiff is impecunious.

[35] Accordingly, I find that the costs awarded should be paid in 30 days.

Disposition

[36] I therefore order that the plaintiff pay to the defendant costs in the amount of $17,263.01 to be paid in thirty days.

Justice P.W. Sutherland Released: January 15, 2019