COURT FILE NO.: 3578/17
DATE: 2020 06 10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Paul J. Hannivan and Pamela J. Hannivan, Plaintiffs (Moving Parties)
AND:
Muhammad Wasi and Re/Max Aboutowne Realty Corp., Defendants
AND BETWEEN:
RE: Muhammad Wasi, Plaintiff by Counterclaim (Responding Party)
AND:
Paul J. Hannivan and Pamela J. Hannivan, Defendants by Counterclaim
BEFORE: Conlan J.
COUNSEL: Mark A. De Sanctis, Counsel for Paul J. Hannivan and Pamela J. Hannivan, Plaintiffs (Moving Parties and Defendants by Counterclaim)
Dheeraj Bhatia, Counsel for Muhammad Wasi, Defendant (Plaintiff by Counterclaim and Responding Party)
ENDORSEMENT ON COSTS
I. Introduction
[1] The Plaintiffs/sellers, Paul J. Hannivan and Pamela J. Hannivan (“Hannivans”), sued the Defendant/buyer, Muhammad Wasi (“Wasi”), regarding a failed real estate transaction. $253,647.44, plus interest and costs, was the value of the claim. Wasi counterclaimed for the return of his $50,000.00 deposit.
[2] On February 10, 2020, this Court heard a motion for summary judgment brought by the Hannivans. In an Endorsement dated February 20, 2020, reported at 2020 ONSC 1060, the motion was granted. Judgment was rendered in favour of the Hannivans for the full amount sought, and the counterclaim was dismissed.
[3] Unable to resolve the issue of costs, the Hannivans have filed written submissions. No submissions have been delivered on behalf of Wasi, and the deadline for receipt of the same has long expired.
[4] The Hannivans seek costs “on a substantial indemnity basis throughout the Action in the amount of $82,622.30”, or alternatively, “on a partial indemnity basis up until the date of their Offer and substantial indemnity costs thereafter in the amount of $75,589.18 in accordance with successfully obtaining a judgment that exceeds their Rule 49 Offer” (paragraph 14 of the written costs submissions filed on behalf of the Hannivans).
[5] The Offer referred to above, dated October 30, 2019, was indeed for less ($230,000.00 plus interest and costs on a partial indemnity basis) than what the Hannivans achieved.
II. Decision
[6] Pursuant to Rule 49.10(1) of the Rules of Civil Procedure, there is a presumption that the Hannivans are entitled to partial indemnity costs to the date of service of the said Offer and substantial indemnity costs from that date. Nothing exists in the circumstances of this case to cause this Court to depart from that presumption.
[7] In assessing the appropriate quantum of costs to be awarded to the Hannivans, this Court must have regard to the factors outlined in Rule 57.01(1), as well as the goals of any costs order – to partially indemnify the successful litigant, and to encourage settlement, and to sanction bad or inappropriate conduct on the part of a litigant, all the while keeping at the forefront the penultimate objective, that is to make an order that is fair, just, reasonable and proportionate in all of the circumstances of the case.
[8] I have reviewed the Costs Outline and supporting materials filed by counsel for the Hannivans. I see nothing that is improper or excessive about the hourly rates charged, or the time spent, or the disbursements incurred.
[9] In my view, the only real question is whether the award of costs in favour of the Hannivans ought to be on a substantial indemnity scale throughout (even before the date that the said Offer was served). In support of that position, counsel for the Hannivans makes several arguments, all reproduced below (at paragraphs 4 through 11 of the written costs submissions filed on behalf of the Hannivans, footnotes excluded).
The Hannivans submits that the conduct of Wasi and/or his counsel throughout this action was, respectfully, inappropriate and ought to be discouraged by costs payable on a full indemnity scale by making unfounded allegations of fraud/deceit against a lawyer.
In an Affidavit sworn by Wasi at a motion in this proceeding, Wasi alleged that counsel for the Plaintiffs was “negligent” and “tried to create a false record” in the headings of his Affidavit. In addition, Exhibit N to Wasi’s Affidavit included a letter from his counsel accusing the lawyer for the Plaintiffs of “repeatedly trying to create a false record” and “indulging in sharp practice.” In response to this letter, counsel for the Hannivans sent correspondence dated November 29, 2019, vehemently disputing the letter of Mr. Bhatia and advising that the Plaintiffs would be relying on these letters with respect to costs.
In addition, counsel for Wasi was sent correspondence threatening to: (i) make a complaint to the Law Society, (ii) bring a motion to hold the lawyer of the Plaintiffs in contempt of court or remove him as lawyer of record, (iii) and claiming that the lawyer for the Plaintiffs caused two affiants to commit perjury. These allegations are unfounded and attempted to seriously impugn the integrity of lawyer for the Hannivans. The Courts have repeatedly held that threatening tactics and reckless allegations of dishonesty that are baseless attract an award of costs on a full indemnity or substantial indemnity scale.
At the outset of the action, counsel for Wasi was ordered to pay costs personally in this action as a result of his conduct, misuse of judicial resources and unnecessary costs.
Three procedural motions were resisted by Wasi in the action. Wasi was unsuccessful on all three motions leading up to the motion for summary judgment. The Hannivans have deducted the costs awards from the procedural motions from their Costs Outline. However, the Hannivans submit that the failure of Wasi to agree to simple procedural motions lengthened the action and wasted scarce judicial resources.
Moveover, many of the positions advanced by Wasi in the Statement of Defence and Counterclaim were largely abandoned at the Motion. However, many of those positions necessitated lengthy cross-examinations on Affidavits.
In addition, the jurisprudence from the Superior Court and Court of Appeal had previously rejected nearly all (if not all) the positions advanced in the Statement of Defence and Counterclaim.
As a result of the aforementioned, the Hannivans submit that the delay in adjudicating the merits of this action lies with Wasi and ought to be reflected in the costs payable in the Action.
[10] All of the said arguments are borne out by a review of the materials filed along with the Hannivans’ written costs submissions, and Wasi has elected not to dispute any of them.
[11] Thus, this Court exercises its discretion to increase the costs award in favour of the Hannivans from $75,589.18 to an even $80,000.00, all-inclusive. Although that is a little less than what the Hannivans requested as their primary position, it is in my opinion a fair, just, reasonable and proportionate award of costs in this case.
[12] Accordingly, this Court orders that Wasi shall pay costs to the Hannivans in the total amount of $80,000.00.
(“Original signed by”)
Conlan J.
Date: June 10, 2020