Court File and Parties

COURT FILE NO.: 15-66598 DATE: 2019/07/19

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

GLORIA ASSALY and ROBERT ASSALY in his capacity as Estate Trustee of the Estate of Thomas C. Assaly without a Will Plaintiffs – and – THOMAS GREGORY ASSALY Defendant

Counsel: Rodrigue Escayola, for the Plaintiffs Self-represented, for the Defendant

HEARD: By written submissions

Costs Endorsement

Corthorn J.

Introduction

[1] The plaintiffs were successful on their motion for an order striking the statement of defence and noting the defendant in default. Given their success on the motion, the plaintiffs were awarded costs of the motion.

[2] The parties were invited to attempt to resolve both the scale on which costs would be payable and the amount of costs payable. Timelines were set for the delivery of submissions in the event the parties were unable to resolve one or both of the scale for and amount of costs payable.

[3] The parties were unable to resolve the issue of costs. Written submissions were received from the plaintiffs. The defendant did not file any submissions with respect to costs.

[4] The plaintiffs seek costs on a substantial indemnity basis totalling $43,375. That amount is broken down as follows:

Item	Amount
Fees	$ 36,934.20
HST on fees	$ 4,801.45
Disbursements (incl. HST)	$ 1,639.68
Total	$ 43,375.32

Scale on which Costs are Payable

[5] The plaintiffs premise their request for costs on the substantial indemnity scale, for the most part, on the defendant’s conduct. The plaintiffs submit that the defendant’s conduct is worthy of sanction. The plaintiffs point to a number of findings made in the ruling on the motion (Assaly v. Assaly, 2019 ONSC 1953, and the “Ruling”). Those findings include that:

• The defendant is in breach of six interlocutory orders in this proceeding;
• The defendant demonstrated “utter disregard for court orders in this and in related proceedings” (Assaly, at para. 68); and
• The defendant is a “frequent offender who systematically flouts court orders and uses the judicial system for personal advantage” (Assaly, at para. 69).

[6] The plaintiffs acknowledge that they did not make an offer to settle the motion. They submit, however, that this case falls within the scope of the “rare and exceptional cases” in which costs are payable on a substantial indemnity basis, even in the absence of an offer to settle. (Whitfield v. Whitfield, 2016 ONCA 720, at para. 23).

[7] An award of costs on the substantial indemnity scale may be made where a party has engaged in flagrant and intentional breach of court orders (SNC-Lavalin Profac Inc. v. Sankar et al. (2009), 2009 ONCA 97, 94 O.R. (3d) 236, at para. 19). I equate the phrase “flagrant and intentional” to the phrases “utter disregard for” (Assaly, at para. 68) and the “systematic flout[ing] of” court orders (Assaly, at para. 69).

[8] I find that an award of costs on the substantial indemnity scale is justified in this matter.

Quantum of Costs

[9] With respect to the amount at which the plaintiffs’ costs are fixed, I note the following.

[10] The plaintiffs’ motion raised questions of significant importance to the parties. The result of the plaintiffs’ motion is that the action will be determined at a short, uncontested trial. The action will not drag on nor will it be bogged down by the defendant, as occurred in other proceedings in which the defendant was involved.

[11] The issues on the motion were somewhat complex. They include (a) the impact of the various steps in bankruptcy taken by the defendant in Ontario and in the USA, and (b) whether the defendant’s failure to comply with interlocutory orders in other proceedings could be considered in support of relief requested by the plaintiffs. The evidence before the court includes reference to and documents from a series of other complicated proceedings. A voluminous record chronicling those proceedings and the present action was required.

[12] The complexity of the motion was such that additional written submissions were requested and delivered in October 2018 and January 2019.

[13] Turning to the work done on behalf of the plaintiffs, the timekeepers whose work is represented in fees totalling $36,935 (rounded figure) include senior counsel (2001 call), two junior counsel (2013 and 2018 calls), an articling student, and a law clerk. The latter’s time is negligible (0.4 hours).

[14] I find as follows with respect to the work done:

• Taking into consideration the voluminous materials required to demonstrate the defendant’s conduct in both this action and the historical proceedings, the time docketed is entirely reasonable;
• There was appropriate delegation of work by senior counsel to others;
• There is no obvious duplication of work as between senior counsel and the other timekeepers;
• The fees claimed are reasonable for a full-day motion even in the absence of any degree of complexity;
• The defendant’s conduct resulted in the motion taking longer to be argued (both orally and because of additional written submissions) than would otherwise have been anticipated; and
• The actual hourly rates for all timekeepers are reasonable.

[15] I allow the fees, as claimed, in the amount of $36,934.20 on a substantial indemnity basis.

[16] The Breakdown of Disbursements provided is confusing. The disbursements claimed (incl. HST) are $1,639.68, yet the disbursements itemized in the Breakdown total in excess of $4,700:

Item	Amount
Binding	$ 11.55
Copy – Internal	$ 1,438.75
Copy – External	$ 645.15
Court Fees – NT	$ 20.00
Postage	$ 49.49
Process Server	$ 341.00
Research	$ 2,203.32
Scanning	$ 28.25
Total	$ 4,737.51

[17] No explanation is provided for the difference between the total of the disbursements incurred and the amount claimed for disbursements. I would, in any event, find that $2,085 for photocopying and $2,200 for research, absent any explanation for those figures, is excessive.

[18] I find the other disbursement items claimed to be reasonable. I allow a total of $1,600 for disbursements (incl. HST).

Disposition

[19] The defendant shall forthwith pay to the plaintiffs their costs of the motion on a substantial indemnity basis in the amount of $43,335. That amount is broken down as follows:

Item	Amount
Fees	$ 36,934.20
HST on fees	$ 4,801.45
Disbursements (incl. HST)	$ 1,600.00
Total	$ 43,335.65

Rounded to $ 43,335.00

Madam Justice Sylvia Corthorn Released: July 19, 2019

COURT FILE NO.: 15-66598 DATE: 2019/07/19 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: GLORIA ASSALY and ROBERT ASSALY in his capacity as Estate Trustee of the Estate of Thomas C. Assaly without a Will Plaintiffs – and – THOMAS GREGORY ASSALY Defendant costs ENDORSEMENT Madam Justice Sylvia Corthorn Released: July 19, 2019