Khazai v. Disante, 2020 ONSC 2518

Court File and Parties

Court File No.: CV-18-77216 Date: 2020/04/23 Court of Ontario, Superior Court of Justice

Re: FARZANEH (FARZI) KHAZAI, Applicant And: DAVID DISANTE and TERESA MCLEOD, Respondents

Before: Mr. Justice Calum MacLeod

Counsel: Gigi Constanzo, for the Applicant Christopher P. Morris, for the Respondents

Heard: In Writing

Costs DECISION

1I have received written submissions in connection with the Application heard in December of last year. That decision, released April 7, 2020 can be found at 2020 ONSC 2152. In the end I granted declaratory relief but declined to award an injunction or damages.

2The Application was brought because of an unreasonable legal position taken by the Respondents. Specifically, they attempted to reduce and limit the Applicant’s use of the right of way. In doing so, the Respondents threatened to interfere with the Applicant’s right of access to her property.

3Unfortunately, while the Applicant was correct in law concerning the use of the Right of Way, she overreached in the litigation and made claims that were either abandoned or which requested relief the court did not ultimately grant. This may have driven up the costs unnecessarily. The Applicant also engaged in her own aggressive and extra-legal activity which contributed to the rancour exhibited by both parties.

4I do not agree that success was mixed in the sense that term is often used. The Applicant was not granted all of the relief she requested but her legal position prevailed. The court found in her favour by declaring that the owner of Nol. 70 enjoyed an unrestricted right of way for the purpose of accessing the rear of her property.

5Costs should follow the event. The Applicant is entitled to costs. There were offers to settle but none of them engage the provisions of Rule 49.10 of the Rules of Civil Procedure. I have considered those offers under Rule 49.13 but neither the offers nor any of the other factors governing an award of costs persuade me that substantial indemnity costs are appropriate. Such awards are extraordinary. Although the fixing of costs is always a discretionary exercise, the starting point for a usual award of costs is approximately two thirds of the reasonable cost of the litigation.

6In this case, the Applicant incurred costs of roughly $33,000.00 while the Respondents incurred costs of roughly $38,000.00. Under those circumstances, even taking into account the fact that the Applicant changed counsel and amended the application, it is hard for the Respondents to argue that the costs incurred by the Applicant are inflated or unreasonable. I would reduce them only slightly to avoid double counting of services due to the change in lawyers and also to reflect some costs which may be related to remedies that were abandoned or which the court declined to grant.

7In the exercise of my discretion pursuant to s. 131 of the Courts of Justice Act, I fix the costs payable by the Respondents at $20,000.00 inclusive of fees, disbursements and HST.

8Ordinarily costs are to be paid within 30 days unless the court orders otherwise but due to the current slowdown and the difficulty in carrying on normal activities due to the COVID 19 outbreak, I will extend the time for payment until August 1st, 2020.