Court File and Parties

COURT FILE NO.: CV-19-79346 DATE: 2020/07/23 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

10313033 CANADA INC. Plaintiff – and – ANTRANIK KECHICHIAN, SANDY KECHICHIAN, ANDREW CHEUNG, CINDY LIN and 7349602 CANADA INC. Defendants

AND B E T W E E N:

ANTRANIK KECHICHIAN Plaintiff by Counterclaim – and – ESSILOR GROUP CANADA, DANY DRIEGE, ERIC SAVARD, ROSALIE MALO, KAHLED EL-SHIEK, BENOIT FONTAINE, RAHMA HAJAJI, TAMI ABOUBAKARY, RAYMOND CHABOT GRANT THORNTON, 10402621 CANADA INC., MADELEINE BONHOMME, SAMEH MANSOUR, 10366668 CANADA INC. Defendants by Counterclaim

COUNSEL: Robert P. Hine, for the Plaintiff/Defendants by Counterclaim, 10313033 Canada Inc., Madeleine Bonhomme, and Sameh Mansour Antranik Kechichian, self-represented Defendant/Plaintiff by Counterclaim

HEARD: In writing

COSTS ENDORSEMENT

Introduction

[1] Three of the defendants by counterclaim were entirely successful on a motion to have the Third Party Counterclaim (“Counterclaim”) struck as duplicative of other proceedings, frivolous, vexatious, an abuse of process, and/or a collateral attack on orders made in related proceedings in the Superior Court of Quebec: 10313033 Canada Inc. v. Kechichian et al., 2020 ONSC 1990 and 2020 ONSC 3459. The former is hereinafter referred to as “the April Ruling”, the latter as “the June Addendum”, and the two decisions collectively as “the Rulings”.

[2] The three defendants are 10313033 Canada Inc. (“103 Canada”), Madeleine Bonhomme (“Bonhomme”), and Sameh Mansour (“Mansour”); they are collectively referred to as “the Moving Parties”.

[3] The Moving Parties seek their costs of the motion on the substantial indemnity scale in the amount of $34,770 or, in the alternative, on the partial indemnity scale in the amount of $23,905 (both rounded figures). In seeking costs on the substantial indemnity scale, the Moving Parties rely on a number of findings made in the Rulings with respect to the conduct of Mr. Kechichian, the deficiencies in his pleading, and the ‘excess’ of his pleading.

[4] The Moving Parties and Mr. Kechichian were given deadlines by which to file their respective costs submissions. Only the Moving Parties filed costs submissions. As the successful parties on the motion, the Moving Parties are entitled to their costs of the motion. Mr. Kechichian did not dispute that entitlement.

[5] The two issues to be determined are (a) the scale on which costs are payable, and (b) the quantum of costs.

Scale on Which Costs are Payable

[6] The Moving Parties were successful on each of the issues related to the quality of Mr. Kechichian’s pleading:

• First, the court found that the Counterclaim was a collateral attack on the vesting orders obtained by a monitor appointed by a judge of the Quebec Superior Court of Justice (April Ruling, at para. 49).
• Second, the court found that the Counterclaim disclosed no reasonable cause of action against the individual defendants by Counterclaim, Bonhomme and Mansour (April Ruling, at para. 57).
• Third, the court found that the Counterclaim is frivolous, vexatious, and an abuse of process (April Ruling, at para. 65).
• Fourth, the court found that the Counterclaim as against Bonhomme and Mansour was duplicative of allegations made by Mr. Kechichian in his pleadings in other actions (June Addendum, at paras. 13-16 and 24).

[7] The court also found that Mr. Kechichian knowingly delivered a detailed and lengthy pleading in which it is “very challenging to identify specific causes of action and to identify the Defendants by Counterclaim against whom [the] causes of action are pleaded” (April Ruling, at paras. 62 and 63).

[8] In summary, Mr. Kechichian behaved in an abusive manner, brought proceedings wholly devoid of merit, and unnecessarily ran up the costs of the litigation. As stated by Molloy J. at para. 9 of Standard Life Assurance Co. v. Elliott et al. (2007), 86 O.R. (3d) 221, when a litigant has conducted themselves in that manner, it is “appropriate” to award costs on the substantial indemnity scale.

[9] Following the release of the April Ruling, the issue of whether the allegations against Bonhomme and Mansour were duplicative of allegations made in other actions in which Mr. Kechichian is involved remained to be addressed. Following receipt of additional materials, that issue was determined in the Moving Parties’ favour. Prior to the release of the June Addendum, the Moving Parties made an offer to settle that issue in favour of Bonhomme and Mansour (“the Offer”). Mr. Kechichian did not accept the Offer.

[10] The Moving Parties acknowledge that the Offer was made after they delivered their supplementary motion record. Acceptance, if made, of the Offer would not have had a significant impact on the costs incurred by the Moving Parties. That said, Mr. Kechichian’s failure to accept the Offer, even after receipt of the supplementary motion record, is another indication of his unabashed determination to pursue matters regardless of their lack of merit.

[11] The Moving Parties ask the court to find that the Counterclaim was “tactical in nature and was intentionally structured to increase the legal costs of the Moving Parties (and others) in order to pressure the [103 Canada] to abandon the action.” Such a finding is not required to support an award of costs on the substantial indemnity scale. Nor am I prepared to make such a finding. Mr. Kechichian is involved in a number of actions – whether personally or in relation to a corporation and whether as a plaintiff or a defendant. He is determined and not easily deterred; that does not make him either a strategist or a tactician.

[12] The relevant factors listed in r. 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194 are discussed below. Those factors were also considered as support for an award of costs on the substantial indemnity scale. In summary, the Moving Parties are entitled to their costs of the motion on the substantial indemnity scale. I turn next to determine the quantum of costs awarded.

Quantum of Costs Awarded

[13] In their updated costs outline, the Moving Parties provide the following breakdown of the $34,770 requested in costs on the substantial indemnity scale:

Fees $ 29,594.50 HST on fees $ 3,847.29 Disbursements $ 1,212.16 HST on disbursements $ 545.24

[14] I will deal first with disbursements. Two disbursement items arise because the Moving Parties retained counsel who practices in Toronto. Those two items are $68.32 for motion materials sent by courier to Ottawa and $545.24 for counsel to travel to Ottawa. The Moving Parties are entitled to retain counsel from outside the Ottawa area. They are not, however, entitled to costs that arise because their counsel practises in Toronto. When those disbursement items (plus applicable HST – for a total of $693.32) are removed from the list of disbursements, the disbursements are reduced to $1,064.08 including HST. I fix the disbursements in that amount.

[15] Turning to the fees claimed, I note the following. The records and factum delivered by the Moving Parties were of high quality. The time docketed for the work done appears reasonable. The hourly rates claimed for senior counsel, associate counsel, and a law clerk are reasonable.

[16] The only reduction I make is with respect to travel time for counsel. Based on senior counsel’s actual hourly rate of $500 and an estimated six hours for travel time, I reduce the fees on the substantial indemnity scale by $2,700 (6 x $500 x 0.9). I allow fees totalling $26,895 and HST thereon of $3,496.35.

[17] In summary, Mr. Kechichian shall pay the Moving Parties their costs of the motion on the substantial indemnity scale in the amount of $31,455 ($26,895 + $3,496.35 + $1,064.08).

[18] In making that award of costs, I have considered the factors under r. 57.01(1):

• The Moving Parties were entirely successful on the motion (r. 57.01(1));
• It is reasonable for the Moving Parties to be awarded costs on the substantial indemnity scale so that they are largely indemnified for the expenses incurred (r. 57.01(1)(0.a) and (0.b));
• The costs awarded are entirely proportional when it is considered that, in the Counterclaim, Mr. Kechichian is seeking damages in excess of $21,000,000 (r. 57.01(1)(a));
• As a result of the manner in which Mr. Kechichian set out the allegations in the Counterclaim, the complexity of a motion to strike was increased (r. 57.01(1)(c)); and
• The outcome on the motion was important to the Moving Parties, as it is of assistance to them in addressing other existing and potential litigation involving Mr. Kechichian (r. 57.01(1)(d)).

[19] The findings made in the April Ruling and/or in the June Addendum are such that the factors set out in rr. 57.01(e) and (f) are also relevant. With respect to the former, the Counterclaim against the Moving Parties unnecessarily lengthened the proceeding. With respect to the latter, the court found that the Counterclaim as against the Moving Parties was frivolous, vexatious, and an abuse of process.

Disposition

[20] In summary, the court orders that Mr. Kechichian shall pay the Moving Parties their costs of the motion on the substantial indemnity scale in the amount of $31,455 inclusive of fees, disbursements, and applicable HST.

Madam Justice Sylvia Corthorn Released: July 23, 2020