COURT FILE NOS.: CV-20-84581; CV-20-84594
DATE: 2021-06-09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Court File No.: CV-20-84581
Kaufman LLP, Applicant
AND
Antranik Kechichian and Optical Vision Canada Ltd., Respondents
Court File No.: CV-20-84594
Essilor Groupe Canada Inc., Applicant
AND
Antranik Kechichian and Optical Vision Canada Ltd., Respondents
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Gary G. Boyd, Counsel for the Applicant (CV-20-84581)
Zohar R. Levy and Chad Pilkington, Counsel for the Applicant (CV-20-84594)
Antranik Kechichian and Optical Vision Canada Ltd., Self-Represented Respondents (CV-20-84581 and CV-20-84594)
HEARD: In writing
COSTS DECISION
M. Smith J
[1] The Respondents Antranik Kechichian and Optical Vision Canada Ltd. (the âRespondent Kechichianâ) were declared vexatious litigants and a Chavali Order was granted (2021 ONSC 1173).
[2] The Applicant Kaufman LLP (the âApplicant Kaufmanâ) seeks costs on a full indemnity basis in the amount of $24,508.81 or alternatively, a payment on a substantial indemnity basis in the amount of $22,123.94.
[3] The Applicant Essilor Groupe Canada Inc. (the âApplicant Essilorâ) seeks a cost award on a substantial indemnity basis in the amount of $61,229.68.
[4] The Respondent Kechichian did not file any materials in response to the Applicantsâ request for costs.
ANALYSIS
[5] Costs are at the discretion of the Court (section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43).
[6] Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the âRulesâ) sets out the factors a Court may consider when deciding on a costs award.
[7] The overriding principals of fairness and reasonableness must be applied to each individual case: Boucher v. Public Accountants Council (Ontario), 2004 14579.
[8] Partial indemnity is commonly awarded unless there are compelling reasons to justify an award at the higher scale.
[9] Substantial indemnity costs are awarded by the Court to express its disapproval of a partyâs conduct, while full indemnity costs should be reserved for conduct that is especially egregious: Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766.
[10] I do not believe that full indemnity costs are appropriate in this case. The Respondent Kechichianâs conduct is fueled by a strong belief that he has been the victim of an elaborate fraudulent scheme perpetrated by the Applicants. The Respondent Kechichianâs continuous desire to commence legal proceedings is misplaced but it does not, in my view, equate to bad faith behaviour warranting a sanction at the highest level of costs.
[11] I do not condone the Respondent Kechichianâs recent actions. A cost award at the substantial indemnity level is an expression of the Courtâs disapproval and is in line with my finding that the Respondent Kechichian is a vexatious litigant.
[12] Turning to the factors set out in r. 57.01(1), I have considered several of them in my determination of the amount of costs to be paid. My comments and observations regarding these factors are set out in the text that follows.
[13] The Applicants were entirely successful in their respective Applications and they are entitled to their costs.
[14] The nature of a vexatious litigation Application is usually a little more complex because of the litigantâs behaviour. Here, the Respondent Kechichian contributed to the complexity. In preparation for these Applications, a thorough review of the 26 actions commenced by the Respondent Kechichian was required and time consuming.
[15] It is unquestionable that the issues were important to the Applicants. They had to proceed with these Applications to end the Respondent Kechichianâs pattern of initiating countless claims against the Applicants.
[16] The Respondent Kechichianâs conduct in these proceedings justify that it is necessary to depart from the general rule of partial indemnity costs.
[17] The Respondent Kechichian should have reasonably expected that, if the Applicants were successful, a significant cost award would follow. There are several costs awards outstanding against the Respondent Kechichian. The most pertinent is the one delivered by Justice Corthorn (10313033 Canada Inc. v. Kechichian, 2020 ONSC 4490), where it was determined that costs should be awarded on a substantial indemnity basis because Mr. Kechichian behaved in an abusive manner.
[18] In these proceedings, the Respondent Kechichian acted in a similarly abusive fashion by threatening motions, proceeding to cross-examine counsel on a procedural affidavit, making unfounded complaints to the Law Society of Ontario, and submitting duplicative and lengthy responding materials to the Applications (in excess of 3500 pages). The Respondent Kechichianâs conduct warrants a cost award at the substantial indemnity level.
[19] The time spent by the Applicant Essilor exceeds that of the Applicant Kaufman by approximately 30 hours. It is noted that the Applicant Essilor prepared and attended at the cross-examination of counsel in November 2020. This accounted for 12 hours of additional work. Overall, considering the quality of the arguments and materials filed, I find that the hours of work are reasonable and appropriate.
[20] The lawyersâ rates are strikingly different. Counsel Boyd, representing the Applicant Kaufman, was called to the bar in 1981. For this matter, the rate of $350.00 per hour was charged to the client, a negotiated rate with the insurer. Counsel Boydâs normal hourly rate is $500.00. On behalf of the Applicant Essilor, there were three counsels involved. The first is counsel Zohar who was called in 2011, with an actual rate of $675.00 per hour. The second is counsel Pilkington, a 2016 year of call, charging an actual rate of $470.00 per hour. The third is counsel Aery, who was called in 2019 and charges an actual hourly rate of $395.00. The difference in rates may be explained by the size of the law firm, but more likely than not, it relates to the geographic locations of the lawyers. Counsels Zohar, Pilkington and Aery work in Toronto, while counsel Boyd practices in Ottawa.
[21] The geographic location of a matter is, in my view, an important consideration. As stated by Justice McNamara in the decision Middleton v. Highlands East (Municipality), 2013 ONSC 2027 at para. 5: âPrinciples of fairness would dictate that the parties would expect that things like hourly rates would bear some resemblance to what would be considered reasonable in the area where the case was triedâ.
[22] It is entirely reasonable for the clients to select the lawyers of their choice. However, if that selection takes them out of the jurisdiction where the matter is heard, it is unreasonable to expect that the unsuccessful party pay the lawyersâ hourly rates from another geographical location.
[23] In Canfield v. Brockville Ontario Speedway, 2018 ONSC 3288, Justice Mew quite accurately stated the following at para. 23: âIn my view, rates used for the purpose of fixing costs should have regard to what clients typically pay. That will vary with the type of work, geographic location and the type of client, among other factors.â I believe that the rates charged by counsel Boyd are more aligned with a clientâs reasonable expectation when dealing with an Ottawa region matter.
[24] On a substantial indemnity basis, the Applicant Kaufman seeks an award of costs in the amount of $22,123.94, inclusive of disbursements and taxes. The disbursements for this Applicant are $558.46. In my view, the total amount claimed for costs is reasonable.
[25] For the Applicant Essilor, I accept that additional work was undertaken because of the cross-examination. And, even if the time spent is more than counsel Boydâs team, it is not excessive. The disbursements claimed are $895.00. I am satisfied with the time spent and disbursements incurred. Counsel Zoharâs presentation and the materials filed were also helpful. The work undertaken by counsel is not the issue with the Applicant Essilorâs request for a cost award of $61,229.68. Rather, it is the hourly rates charged and whether it is fair and reasonable in the circumstances of this case.
[26] I do not intend on going through a mathematical exercise by applying lower rates that are more reflective to Ottawaâs geographical location. For the reasons set out above, and relying on the principles of fairness and reasonableness, I am prepared to award the all-inclusive costs of $30,000.00 to the Applicant Essilor.
CONCLUSION
[27] The all-inclusive costs, payable by the Respondent Kechichian to the Applicant Kaufman and the Applicant Essilor, are therefore fixed at $22,123.94 and $30,000.00, respectively.
Justice Marc Smith
Released: June 9, 2021
COURT FILE NOS.: CV-20-84581; CV-20-84594
DATE: 2021-06-09
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Court File No.: CV-20-84581
Kaufman LLP, Applicant
AND
Antranik Kechichian and Optical Vision Canada Ltd., Respondents
Court File No.: CV-20-84594
Essilor Groupe Canada Inc., Applicant
AND
Antranik Kechichian and Optical Vision Canada Ltd., Respondents
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Gary G. Boyd, Counsel for the Applicant (CV-20-84581)
Zohar R. Levy and Chad Pilkington, Counsel for the Applicant (CV-20-84594)
Antranik Kechichian and Optical Vision Canada Ltd., Self-Represented Respondents (CV-20-84581 and CV-20-84594)
COSTS DECISION
Justice Marc Smith
Released: June 9, 2021