Dunning v. Eftekhar

Barrie Court File No.: CV-17-1085 Date: 2019-10-25 Ontario Superior Court of Justice

Between:

Ashley Dawn Dunning a.k.a. Ashley Dawn Reid and Brian James Dunning Plaintiffs

– and –

Houman Eftekhar, Hanieh Eftekhar and Century 21 B.J. Roth Realty Ltd. Defendants

Counsel: Mr. C. Salazar, for the Plaintiffs, Dunning Mr. D. Bhatia, for the Defendants, Eftekhar Mr. C. Tucker, for the Defendant, Century 21 B.J. Roth Realty Ltd.

And Between:

Houman Eftekhar, Hanieh Eftekhar Plaintiffs by Counterclaim

– and –

Ashley Dawn Dunning a.k.a. Ashley Dawn Reid, Brian James Dunning, Century 21 B.J. Roth Realty Ltd., Christy McGee and Adam Scarati Defendants by Counterclaim

Counsel: Mr. D. Bhatia, for the Plaintiffs by Counterclaim, Eftekhar Mr. C. Salazar, for the Defendants by Counterclaim, Dunning Mr. C. Tucker, for the Defendants by Counterclaim, Century 21 B.J. Roth Realty Ltd., Christy McGee and Adam Scarati

Heard: In Writing

REASONS FOR DECISION ON COSTS

VALLEE J.:

Introduction

[1] The defendants Eftekhar successfully defended the motions for summary judgment brought by the plaintiffs Dunning and the co-defendant Century 21. The matter concerned an agreement of purchase and sale for a lot in a subdivision, Lot 27 65M-3049, which fronted on to Downey Circle. The size of the property was misdescribed in the listing. The deal did not close. Both motions arose from the same set of facts. Century 21 was a defendant because it held the defendant Houman Eftekhar’s deposit. Its motion for summary judgment was essentially to have the defendants’ counterclaim dismissed against it in the event that the plaintiffs were successful.

[2] Rule 57 of the Rules of Civil Procedure[^1] sets out the factors that the court may consider in awarding costs in addition to the result in the proceeding. Two of the factors are whether the conduct of any party tended to shorten or to lengthen unnecessarily the duration of the proceeding and whether a party denied or refused to admit anything that should have been admitted.

[3] Even though the defendants could have filed one responding record, one factum and one book of authorities, they chose to proceed in a disorganized and inefficient manner. They filed two responding records, each with a separate affidavit, two factums and numerous books of authorities, seven volumes in all. Much of the evidence was duplicated in the defendants’ two affidavits. Preparation time was duplicated. Costs were increased unnecessarily. In both responding records, the defendants included a “Reply” in the form of a pleading, followed by the affidavits. Combined, these replies were 18 pages long. A reply is not a proper document in responding materials on a motion. The defendants filed four books of authorities. The first contained seven cases, the second contained 13 cases, five of which were duplicates from the first, the third contained nine cases and the fourth, which was stapled together, contained seven cases. A further collection of cases clipped together was handed up at the end of submissions, five of which were repeats from the fourth collection. The defendants provided a total of 33 cases in a disorganized manner but only 11 of them were referred to in submissions. Many were not on point or could be easily distinguished. The provision of cases was an ongoing process during the motion and unnecessarily consumed the court’s time during the hearing. The court should have had all of the defendants’ authorities prior to the commencement of the motion. Bombarding the court with cases is a strategy that is unacceptable. Exclusive research underlies it.

[4] The defendants’ submissions were very lengthy and often repetitive on issues that were uncontested or admitted. For example, a considerable amount of time was spent on the fact that the property was misdescribed in the listing, even though that fact was admitted. The defendants took unreasonable positions, such as refusing to admit that a document was a survey for the property when it clearly showed the surveyor’s certificate, stating that the document was a field survey of Lot 27 by registered plan 65M-3049. It was signed by Ontario Land Surveyor David O. Horwood. On the agreement of purchase and sale, the same description was used for the property. Counsel for the defendants argued that they did not receive a copy of the survey as required by the agreement of purchase and sale because the email and the related document were two separate exhibits and therefore, one could not tell for certain the identity of the document attached to the email, even though the text of the email from the plaintiffs’ agent to the defendants’ agent dated March 28, 2017 stated, “Hi Shawn. Thanks for the deposit. Here is a copy of the survey. Christy.” On cross-examination, the defendant admitted that he did receive it.

[5] Furthermore, the defendants insisted that they were entitled to an original survey, signed in ink, despite the fact that the Horwood survey was signed in 1995, 24 years ago. In addition, the defendants acknowledged receiving a portion of an M-plan but maintained that they could not tell what it related to when it clearly showed Lot 27 fronting on to Downey Circle and had a box at the top setting out the M-plan number, 65M3049. Submissions on these points consumed a significant amount of time and were ill-considered.

[6] This long motion began on March 22, 2019 and had to be continued on September 17, 2019. If the defendants’ submissions had been focused on the salient issues and had been delivered in an organized and efficient manner, this matter could have been addressed in one day. Instead, there was a 6-month delay before the matter could be returned before me.

[7] The defendants state that the plaintiffs served their motion prior to Century 21’s motion. They state that Century 21 “need not have filed the Motion as they ought to have seen the result of the motion filed by the sellers parties [sic]”. A lack of hindsight is not a persuasive argument in this case.

[8] The defendants request the astonishing amount of $108,044.03, all inclusive for both motions. This is shown to be a full indemnity amount, despite the fact that there is no evidence of any offer to settle, nor was there any egregious conduct. There is no reason for elevated costs in this matter. The defendants also provided in their summary a partial indemnity amount of $75,422.49. The fees requested are not supported by dockets.

[9] Counsel for the plaintiffs provided a costs outline. He has seven years of experience and charges $325 per hour. Counsel for Century 21 provided detailed docket entries. He has 10 years of experience and charges $270 per hour. Counsel for the defendants did not provide a detailed costs outline. Rather, he provided summaries of hours for certain items. The excessive preparation can be seen in the outline which shows that 35.7 hours were spent in research and preparation of the factum and books of authorities to respond to the plaintiffs’ motion and 33 hours to prepare for the hearing. Regarding Century 21’s motion, 8.8 hours were spent to prepare the documents as well as 43.5 hours to prepare for the hearing. A total of 44.5 hours were spent to prepare the materials; 75.5 hours were spent to prepare for the hearing.

[10] Defendants’ counsel has 10 years of experience and charges $550 per hour. His partial indemnity rate is shown to be $400 per hour which equates to 72.7% of the full indemnity amount. This is not the correct way to calculate partial indemnity costs. Partial indemnity costs are 66% of the substantial indemnity amount. Defendants’ counsel’s partial indemnity rate, properly calculated, is $326 per hour. Furthermore, the Practice Direction states that for lawyers with 10 to 20 years of experience, a maximum of $300 per hour is appropriate for fixing partial indemnity costs. This rate applies to more complicated matters and experienced counsel within the range. This motion was moderately complex. Counsel’s 10 years of experience places him at the low end of the experience range.

[11] In contrast, the plaintiffs’ costs outline shows an all-inclusive amount for the motion on a partial indemnity basis of $16,303.78 in which the partial indemnity fees are correctly calculated as 66% of the substantial indemnity amount. Century 21’s summary and dockets show full indemnity fees of $26,056 of which substantial indemnity would be $23,450. Partial indemnity would be $15,477. Including disbursements and tax, the total would be $20,026.65.

[12] The defendants should not have incurred more in fees to defend the plaintiffs’ motion than the plaintiffs did to bring the motion, which was $14,428.12. Taking into account that the defendants were required to respond to two motions that had considerable overlap, it would be appropriate to allow a further $4,000 for that work. The defendants’ combined disbursements including tax total $3,407.59 which includes $820 for process server fees. No receipts were provided. I note that the plaintiffs’ disbursement for courier and process server charges was $220. Century 21’s disbursement list does not include any amount for courier fees.

[13] Ultimately, in fixing an amount for costs, the overriding principles are fairness and reasonableness. See Boucher v. Public Accountants[^2]. The court must also consider what the losing party would have expected to pay.

[14] In my view, a fair, reasonable and proportionate costs award for these motions is $20,000, all inclusive, $14,000 of which shall be paid by the plaintiffs and $6,000 of which shall be paid by Century 21 within 45 days.

Madam Justice M.E. Vallee

Released: October 25, 2019

[^1]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [^2]: Boucher v. Public Accountants, 71 O.R. (3d) 291.