Court File and Parties
COURT FILE NO.: CV-20-633743 WRITTEN COSTS SUBMISSIONS FILED: 20201210 COSTS ENDORSEMENT RELEASED: 20210310
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
FARSHAD (FRANK) DAVOODIAN and FARI DAVOODIAN Claimants/Debtors
- and-
DUFFERIN WIND POWER INC. Respondent/Creditor
BEFORE: MASTER M.P. McGRAW
COUNSEL: C. Harris Email: conner@rbllp.com
- for the Respondent/Creditor, Dufferin Wind Power Inc. (“DWP”)
A.S. Dhillon Email: arshdeepdhillon@gmail.com
- for the Claimants/Debtors, Farshad (Frank) Davoodian and Fari Davoodian (the “Debtors”)
COSTS ENDORSEMENT RELEASED: March 10, 2021
Costs Endorsement
I. Background
[1] DWP brought a motion to compel the Debtors to attend their Examinations in Aid of Execution and for leave to amend its writs of seizure and sale (the “Writs”). The parties have consented to all relief including the costs thrown away of two non-attendances but could not agree on the costs of the motion. DWP seeks costs of $8,588.47 and the Debtors seek $6,072.34 both on a partial indemnity scale.
II. The Law and Analysis
[2] The Debtors were originally required to attend their Examinations in Aid of Execution on February 27, 2020. At 6 p.m. on February 26, 2020, the Debtors advised DWP’s counsel that they could not attend. DWP’s counsel sent email correspondence to the Debtors on March 4, 11 and 19, 2020 regarding their non-attendance and the invoice from the court reporter’s office. The Debtors were self-represented at the time and claim that they did not have access to a computer and did not receive the emails. Although the March 4 letter was also sent by regular mail, the Debtors claim that they did not receive it.
[3] Having received no response, DWP’s counsel sent an email to the Debtors on April 24, 2020 attaching DWP’s Motion Record and advising that DWP would request a hearing date if the Debtors did not consent to the relief sought. Having received no response, DWP’s counsel sent another email to the Debtors on May 19, 2020 advising them that DWP would be requesting that the motion be determined in writing but that they would consent to a virtual or telephone hearing if the Debtors preferred. The Debtors claim that they did not receive these emails.
[4] By Endorsement dated May 29, 2020, Master Muir directed that the motion be heard virtually on July 9, 2020. The Endorsement was emailed to DWP’s counsel and the Debtors. The Debtors claim they did not receive it. On June 3, 2020, DWP delivered its Notice of Motion and Affidavit by email to the Debtors together with a letter explaining next steps. This was also delivered to the Debtors by courier together with a copy of the Endorsement.
[5] The Debtors acknowledge that they received the courier package and replied by letter on June 5, 2020. DWP’s counsel claims that they did not receive this letter but that they received another letter from the Debtors dated June 16, 2020 in which they advised that they did not have access to a computer to participate in the motion on July 9. DWP’s counsel sent a letter on June 22, 2020 by regular mail and fax requesting that the Debtors re-send the June 5 letter and offering to assist them to access the motion or to make alternative arrangements for participation by telephone. DWP delivered its Factum and Book of Authorities by email on June 29, 2020 and by regular mail on June 30, 2020.
[6] The Debtors retained counsel on July 1, 2020 who served a Notice of Appointment of Solicitor on DWP’s counsel on July 2, 2020. Counsel discussed a resolution of the motion starting on July 3, 2020. At the attendance before me on July 9, counsel advised that the parties had agreed on the terms of an order including costs thrown away of the first examination, however, they could not agree on costs of the motion. I ordered a timetable for costs submissions.
[7] Counsel subsequently scheduled a telephone case conference which proceeded before me on November 13, 2020. Among other things, they advised that the Debtors did not attend as agreed on a second examination scheduled for August 19, 2020. I granted an order on consent directing the Debtors to attend an examination on December 17, 2020 and to pay costs thrown away of the second examination. Debtors’ counsel advised that they might file additional costs submissions and bring a motion to stay execution of the Writs which, if granted, would prevent the examinations from proceeding.
[8] Subject to the provisions of an Act or the Rules, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid (s. 131(1), Courts of Justice Act (Ontario)). In exercising this discretion, in addition to the result and any offer to settle made in writing, the court may consider the factors set out in Rule 57.01(1).
[9] The overriding principles in determining costs are fairness and reasonableness (Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291 (C.A.); Deonath v. Iqbal, 2017 ONSC 3672 at paras. 20-21). The general rule is that costs on a partial indemnity scale should follow the event which should only be departed from for very good reasons such as misconduct of the party, miscarriage in procedure or oppressive or vexatious conduct (1318706 Ontario Ltd. v. Niagara (Regional Municipality), 75 O.R. (3d) 405 (C.A.); 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 at paras. 10, 12-14). The court must also consider Rule 1.04(1) to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits and Rule 1.04(1.1) to make costs orders which are proportionate to the importance and complexity of the issues and to the amount involved (Deonath at para. 21).
[10] Costs are not usually awarded where a motion is settled on all issues except for costs unless there are exceptional circumstances (Kearney v. Hill, 2017 ONSC 6306 at paras. 27-31; Muskala v. Sitarski, 2017 ONSC 2842 at paras. 5-12). Exceptional circumstances include situations where the parties have agreed to resolve the motion on all issues except for costs and where it is unlikely that the motion would have proceeded on consent without deferring costs (Kearney at paras. 28-30).
[11] Although the motion ultimately proceeded on consent, I am satisfied that there are exceptional circumstances which support the granting of costs. In particular, it is unlikely that the motion would have proceeded on consent had costs not been deferred as agreed by the parties. In my view, having motions proceed on consent with costs submissions in writing is consistent with Rule 1.04(1) and furthers the goals of promoting settlement, fairness to the parties, access to justice and proportionality (Cadieux (Litigation guardian of) v. Cloutier, 2019 ONCA 241 at paras. 21-25).
[12] Having considered the relevant factors and circumstances, I am satisfied that DWP should be awarded some costs given the Debtors’ conduct which unnecessarily lengthened the proceeding (Rule 57.01(1)(e)). In this respect, I reject the Debtors’ submissions that the motion was not necessary and could have been avoided if DWP’s counsel had simply re-scheduled the examinations with the Debtors. The Debtors argue, relying in part on Rules 16.01(4) and 16.07, that had DWP’s counsel communicated with them by regular mail after their initial non-attendance, counsel could have re-scheduled the examinations without a motion. I am not convinced that this is the case.
[13] In my view, even accepting the Debtors’ evidence that they did not receive any correspondence or documents until June 3, 2020, I do not accept that the motion could have been avoided. It is important to emphasize that the Debtors were obligated to attend the examinations. Other than counsel’s suggestion at the case conference that they might bring a motion to stay the enforcement of the Writs, at no time did they raise the possibility that they were not required to attend. The Debtors started the chain of events leading to the motion with their last-minute cancellation of the first examinations. While they agreed to pay costs thrown away of these examinations, the record demonstrates that they have not been fully cooperative about re-attending.
[14] After the Debtors received DWP’s motion materials on June 3, 2020, they were aware that DWP was seeking a court order to compel their attendance on the examinations. If they were truly willing to re-schedule their examinations they could have made the necessary arrangements with DWP’s counsel at that time or retained counsel to do so on their behalf. However, the Debtors waited until 8 days before the motion then retained counsel. This led to additional costs including discussions between counsel to resolve the motion and negated any chance that the parties could have avoided attending on the motion.
[15] While the Debtors consented to attending their examinations as part of resolving the motion, they failed again to attend on August 19, 2020, the second examination date. This second non-attendance and other issues necessitated the November 13 case conference during which although the Debtors agreed to a third date for the examination, their counsel advised that they might bring a motion for a stay to pre-empt the third examination date which they had just agreed to. In my view, although the Debtors have agreed to new dates and to pay costs thrown away of the second examination and DWP is not claiming costs after July 9, their conduct demonstrates that the Debtors were not fully committed to attending. Accordingly, I am not convinced that if the Debtors were not faced with the motion that they would have agreed to do so. While I acknowledge that there were issues with service and communication prior to June 3, 2020, I have accounted for this by reducing the amount awarded to DWP.
[16] Having reviewed both parties’ Costs Outlines and considered all of the relevant factors, I conclude that it is fair and reasonable in the circumstances and within the reasonable expectations of the parties for the Debtors to pay costs to DWP fixed in the amount of $4,000 payable within 60 days. In arriving at this amount, I have also reduced the amount claimed for research and taken into consideration that the Debtors seek over $6,000 for the costs of their own counsel’s more limited involvement in determining the reasonable expectations of the parties.
Released: March 10, 2021 Master M.P. McGraw