Court File and Parties

COURT FILE NO.: CV-18-603502 DATE: 20191029

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Yibrah Goitom Ghebre also known as Yibrah Goitom, Applicant AND: Haile Zeweldi Tesfa and Bereket Gonche also known as Bereket G. Gonchie, Respondents

BEFORE: A. J. O’Marra J.

COUNSEL: Normal Epstein, for the Applicant Allan Morrison, for the Respondents

HEARD: April 18, 2019

COSTS ENDORSEMENT

[1] The Applicant was terminated as the priest of the St. Michael Eritrean Orthodox Tewahdo Church by the Church governing body by letter dated June 28, 2018 signed by Respondent, Tesfa effective July 2, 2018, and replaced by Respondent, Gonchie the associate priest of the Church. The application for injunctive relief and reinstatement was dismissed April 18, 2019, with costs payable to the respondents.

[2] The respondents seek costs on a substantial indemnity basis in the amount of $104,706.19 inclusive of HST and disbursements on the failed application of the applicant for reinstatement as a priest for the Church located at 702 Jane Street, Toronto.

[3] The applicant’s position is that the amount sought by the respondents is both excessive and disproportionate. He claims there should be no costs awarded as the success of the application was divided.

[4] The respondents’ claim that the termination of the applicant as its priest was necessary because he demanded to be made a board member of the Church. However, as a paid employee of the Church to have met his demand it was considered contrary to the Canada Revenue Agency rules regarding charitable organizations. Further, he made demands that 15% of the gross revenue of the Church be forwarded to the Synod in Eritrea, again contrary to Canadian charitable law.

[5] The applicant however, disputed the authority and legitimacy of the Board to terminate his services. He maintained that such authority rested with the Diocese of the American and Canadian Eritrean Orthodox Tewahdo churches, which operated out of the United States, which derived its authority from the Eritrean Orthodox Synod in Eritrea. These issues were not litigated.

[6] Prior to the hearing date of the application set for November 16, 2018 the applicant sought interim interlocutory relief as to his termination on August 30, 2018 before G. Dow J. It was dismissed with costs in favour of the respondents, reserved to the judge hearing the application.

[7] On the hearing of the application November 16, 2018 the court held by endorsement that the claim for injunctive relief did not meet the criteria set out in RJR MacDonald Inc. v. Canada (Attorney General), (1994) 1994 CanLII 117 (SCC), 1 S.C.R. 311. In order to facilitate a peaceful resolution, as factions supporting both the Church Board and applicant had developed, the court ordered that the question of reinstatement be adjourned to a mutually agreeable date in January 2019 to permit the Church members in the interim conduct a meeting prior to the end of December 2018 with notification to all registered members as defined by the Church by-laws, and registered prior to July 1, 2018 to nominate an election committee and to elect a board of directors. The court recognized that pursuant to the Church by-laws, “members” were considered the highest authority of the Church, and as such the meeting was to be conducted by its members, not the Diocese or Synod of Eritrea. The question of spiritual leadership was a matter for the Church members and its leadership.

[8] The meeting as directed was held December 16, 2018 however, not without controversy. On the attendance of the applicant and supporters a brief intervention of members of the Toronto Police Service was required to ensure the peaceful conduct of the meeting.

[9] Subsequently, the applicant sought to have the court declare the membership meeting and the nomination and election of Church board members null and void. The request was denied as notification and the conduct of the meeting was found to have been conducted in compliance with the order made November 16, 2018. Further, on April 18, 2019 it was held that the original application for injunctive relief and reinstatement were without merit and dismissed with costs payable to the respondents.

[10] In determining the issue of costs, I take into account the factors enumerated under Rule 57.01(1) including the time spent, the complexity of the matter, the importance of the issues, the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding and whether any step in the proceeding was improper, vexatious or unnecessary. In addition, I must consider the principle set forth in the Court of Appeal decision in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. 3rd 291 and as echoed in Rule 57.01(1)(0.b) that the objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by a successful litigant.

[11] The respondents’ claim for substantial indemnity costs is based on the number of claims and remedies sought against respondents who were not the appropriate parties from whom to seek remedies. There were multiple attendances; seven case conferences and court attendances. The respondents assert that the applicant routinely postponed scheduled meetings either because he did not attend or failed to schedule an interpreter required. Moreover, despite having the interim injunction dismissed, the applicant unnecessarily lengthened proceedings by continuing to pursue it against parties who were not in position to comply.

[12] The respondents claim that the applicant and his supporters engaged in behaviour worthy of sanction. Here, they refer to extra-court bullying behaviour of “posting numerous false and denigrating comments on Facebook about the respondents, the Church and members of the Church to influence opinion of individuals . . . potentially dangerous in terms of personal security . . .”.

[13] The respondents claim that they were harassed by “fruitless litigation against parties who were not “proper parties” in relation to the injunctive relief and employment reinstatement, which would only be actionable against the Church”.

[14] The applicant sought additional relief in challenging the membership meeting.

[15] The parties both agree that the issues were of importance to the adherents of a church divided over the dismissal of the applicant and control of the Church.

[16] Although the applicant’s request for injunctive relief and reinstatement were dismissed, he claims partial success as a result of the order made by the court November 16, 2018 directing a membership meeting, even though its conduct was later challenged.

[17] In my view, based on the application brought, the order for the members to hold a meeting did not amount to partial success as claimed by the applicant. The order was made on consent of the parties to allow the registered membership of the Church to resolve the dispute.

[18] The application seeking injunctive relief and reinstatement in the circumstances was ill-conceived and pursued, there being no basis to award the relief sought from the parties named. It was perhaps a matter more properly framed as an employment claim in contract.

[19] Notwithstanding, I am unable to agree with the respondents’ claim that the application and challenge to the membership meeting were worthy of sanction. Also, I am unable to evaluate the respondents’ claim for sanctionable costs due to the extra-court claim of harassment.

[20] The respondents’ partial indemnity costs are in the amount of $74,857.24 (inclusive of HST and disbursements). The applicant’s costs and disbursements on a partial indemnity basis are $17,966.15. The respondents’ bill of costs are for a senior and junior counsel, whereas the applicant bills for one senior counsel and clerk. While there is a corresponding time commitment for a matter that entailed multiple case conferences, court, preparation of affidavits and cross-examinations and court appearances there is an irreconcilable difference between the parties’ bills of costs. The appropriate balance is somewhere between them.

[21] Some of the disbursements claimed by the respondents of almost $10,000.00 for the conduct of the membership meeting December 16, 2018 which included security and the attendance of an independent observer are those of the Church and its costs of business. In my view, the claim for disbursements should be reduced accordingly, and more in line with the applicant.

[22] The applicant claims he is impecunious and as such the respondents’ costs should be denied. However, there is no evidence of impecuniosity. Further, as noted by the respondents, the applicant undertook in his affidavit of August 10, 2018 to pay damages to the respondents should his requests for temporary, interim and permanent injunction be granted, but the application ultimately unsuccessful.

[23] In the result, costs shall be ordered against the applicant, which includes the award from the interim interlocutory injunction relief application and this application in the fixed amount of $50,000.00 inclusive of fees, HST and disbursements, payable by the applicant within 30 days of the date of this endorsement.

A.J. O’Marra J.

Date: October 29, 2019