COURT FILE NO.: CV-13-1084-00

DATE: 2020 11 18

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Ahmed Elbasiouni

AND:

The Chief Building Official (CBO) and The Corporation of the City of Brampton

BEFORE: Ricchetti, RSJ

COUNSEL: M. Elbassiouni for the Applicant and Essam Elbassiouni

C. Painter for the Corporation of the City of Brampton

Contents

COST ENDORSEMENT ON LITIGATION GUARDIAN MOTION.. 1

Was there an Agreement on Costs?. 2

The Position of the Parties. 4

Offers 4

Entitlement to Costs. 4

Scale of Costs. 5

Against who should be ordered to pay the costs?. 6

Quantum of Costs. 7

Conclusion. 8

COST ENDORSEMENT ON LITIGATION GUARDIAN MOTION

[1] This was a motion by Essam Elbassiouni seeking to be appointed as Ahmed Elbasiouni’s litigation guardian in this and all other civil proceedings involving Ahmed Elbasiouni. Ahmed Elbasiouni consented to the motion. The Corporation of the City of Brampton (“City”) opposed the motion.

[2] The motion was heard on August 27, 2020. The motion was dismissed on September 2, 2020 - costs were reserved. Written reasons were released. See Elbasiouni v. The Chief Building Official, 2020 ONSC 5256.

[3] The court requested written submissions on costs. Written submissions were received from the parties.

[4] At one point, the Applicant’s counsel advised the court that the parties had settled the issue of costs on a no-costs basis. This was denied by the City’s counsel. The parties were given a further opportunity to make submissions on whether there was an agreement on the issue of costs.

[5] A preliminary note: the cost submissions are replete with personal and professional attacks between counsel. I recognize that the litigation involving Ahmed Elbasiouni (Mohamed Elbassiouni’s brother) has been lengthy, high conflict, acrimonious and expensive for all concerned. However, such personal and professional attacks generally have no place in counsels’ submissions to a court. Such submissions detract and distract from the appropriate relevant submissions – as it did in this case as many issues which are relevant to this court’s determination such as whether costs should be imposed, against who, what scale, and what quantum were not addressed or fully addressed. Attacks on the opposing counsel should only be made in the rarest of cases where counsel’s duty to their client and the court requires it. This was not such a case.

Was there an Agreement on Costs?

[6] The Applicant’s position that there was a valid and enforceable agreement on costs is seriously flawed. It is rejected by this court.

[7] There are a number of reasons for this conclusion. For example, the Applicant relies on the lack of a response, by the City’s counsel to his email of September 21, 2020 at 1:24 p.m., to his intention to advise the court of an agreement on costs. Flawed, because Mr. Mohamed Elbassiouni wrote to this court at 1:53 p.m. the same day – 29 minutes later – hardly sufficient time to suggest acquiescence or evidence of the agreement by City’s counsel. In any event by 2:28 p.m., the City’s counsel made it clear that he disagreed an agreement had been reached on costs.

[8] Further, Mr. Mohamed Elbassiouni wrote to the City’s counsel at 2:48 p.m. on the same day where Mr. Elbassiouni stated: “I really need to know what is your client’s position regarding the cost of the motion before Justice Ricchetti….” This statement is inconsistent with the existence of a clear and unequivocal agreement on costs.

[9] The circumstances at the time are also inconsistent with the existence of an agreement on costs. The City had submitted its costs submissions. Mr. Mohamed Elbassiouni had commenced an appeal. While there were communications between the parties on settling costs, it was tied to another issue(s) which included a resolution of the proceeding before the Court of Appeal (on which the parties could not and did not agree).

[10] The Applicant’s cost submission makes it clear there is no unequivocal agreement but rather a belief or hope of an agreement: “The Applicant’s counsel submits that assuming that the submission of both counsel are believable, it is very reasonable to conclude that the Applicant’s counsel was under the genuine belief that the Respondent and its counsel agreed that no costs to be awarded to both parties for the motions before the Court of Appeal and the motion before Justice Ricchetti.” (emphasis added)

[11] Lastly, despite numerous emails between the parties, there simply is no clear and unequivocal communication that counsel was or had been ad idem on the settlement of costs.

[12] I find there was no agreement on the settlement of costs.

The Position of the Parties

[13] The City seeks full indemnity costs of $29,591.88 payable by Mohamed Elbassiouni (the Applicant’s counsel) or by Essam Elbassiouni (the party seeking appointment as litigation guardian) or by Ahmed Elbasiouni “or by some combination of them or all of them”.

[14] Aside from the Applicant’s position that there was a settlement on the issue of costs, there does not appear to be any clear position, or alternative position, in the Applicant’s submissions.

Offers

[15] There are no Offers to Settle which engage the cost consequences under the Rules or are a factor in this court’s costs decision.

Entitlement to Costs

[16] Costs generally follow the event. The City was successful.

[17] I see no basis to deny the City costs of the motion.

Scale of Costs

[18] Costs are always discretionary under section 131 of the Courts of Justice Act. The overriding principle in assessing costs is to ensure that costs are fair and reasonable in the circumstances. See Davies v. Clarington (Municipality), 2009 ONCA 722. Fairness and reasonableness are considered in light of the factors in Rule 57.01 and a consideration of what the responding parties ought reasonably to have anticipated paying. Fostering access to justice is also a consideration in the assessment of costs. See Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 OR (3d) 291 (CA).

[19] On the issue of enhanced scale of costs, the Court of Appeal has stated that costs on an enhanced basis should only be awarded “where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties” or other egregious circumstances which warrant the court’s sanction.

[20] In this case, the reasons for the dismissal of the motion include:

a) Insufficient evidence of a disability;

b) Overly broad relief sought;

c) Motion was brought in a proceeding which has been finally disposed of;

d) Inappropriate proposed litigation guardian; and

e) Apparent motivation to delay the outstanding Court of Appeal proceeding.

[21] Given these issues, there was no reasonable prospect of this motion succeeding. The Applicant’s explanation was to point to the short timeframe the Court of Appeal gave to bring this motion. I reject this excuse. It should be noted that the same relief was sought before the Court of Appeal, apparently, without a proper motion record, resulting in the Court of Appeal directing that it be brought before this court.

[22] I conclude this warrants an enhanced scale of costs. However, I am not persuaded that “full indemnity” costs are appropriate. There is clearly “something” to the concerns expressed in the motion, however ill conceived and hopeless this motion was on this record.

[23] In my view, a reasonable and fair resolution is to award substantial indemnity costs to the City.

Against who should be ordered to pay the costs?

[24] The reality was that this motion was not brought by Ahmed Elbasiouni. He consented to the motion but there is no evidence this was done at his insistence or direction.

[25] Rather, the motion was brought by his brother, Essam Elbassiouni. The “Full Application Record” shows Essam Elbassiouni as the Applicant, albeit in the companion, joint motion under the Substitute Decisions Act. In my view, this is the party responsible for bringing this unsuccessful motion and who should pay any cost award.

[26] As for the submission that costs be awarded against Mohamed Elbassiouni, I reject this submission. When this issue arose, Mohamed Elbassiouni did not retain counsel to deal with this issue. Nevertheless, aside from the fact that Mohamed Elbassiouni is Ahmed Elbassiouni’s brother, I am not persuaded that the conduct of Mohamed Elbassiouni reaches the very high standard required to make a costs award against counsel personally.

[27] Substantial indemnity costs will be awarded to the City and payable by Essam Elbassiouni.

Quantum of Costs

[28] Aside from objecting to the fees associated with Mr. Cutler’s affidavit, the Applicant makes no other submissions regarding the quantum of costs or raises specific concerns with other items in the City’s Costs Outline.

[29] I agree that there were issues regarding Mr. Cutler’s affidavit filed on this motion. Parts of it were struck, on consent, on the basis it contained inappropriate opinions. The quantum of costs should reflect a significant reduction for this factor.

[30] Having again reviewed the factums of the parties, it is clear that some of the time was due to the unnecessarily, highly contentious relationship between counsel.

[31] Nevertheless, given the lengthy and complex litigation proceedings involving Ahmed Elbasiouni and the City, and the very broad nature of the relief requested, is a significant reason why costs should be higher than a typical litigation guardian appointment motion.

[32] Some examples which increased the complexity and legal expense of this motion includes:

a) this motion was brought in a proceeding which had been finally disposed of;

b) the Applicant refused to permit the City’s counsel to obtain information from Dr. Postoff, potentially to clarify Ahmed Elbasiouni’s true mental condition; and

c) the type of questions that Essam Elbassiouni refused to answer during his cross- examination.

[33] Having said that more time was needed to respond to this motion, I cannot accept that it took 71 hours to respond to this motion. One simply has to look at the responding materials which focus on Ahmed Elbasiouni’s prior conduct rather than focus on whether Ahmed Elbasiouni in now disabled and it was appropriate to appoint a litigation guardian.

[34] As a result, I am not persuaded that fees of 22,635.00 plus HST of $2,942.55 (based on full indemnity) are reasonable and fair. In my view, fees of $13,500 (all inclusive of HST and the cost submissions) is the appropriate balance of the factors set out above.

[35] There is no issue regarding the disbursements of $2,036.83 (HST included).

Conclusion

[36] Essam Elbassiouni shall forthwith pay to the City the sum of $15,536.83 (all inclusive) for the costs of this motion.

Ricchetti, RSJ

Date: November 18, 2020