Court File and Parties

COURT FILE NO.: CV-20-645936 DATE: 20210611

ONTARIO SUPERIOR COURT OF JUSTICE

RE: NICOLE SOFIA JACUBOVICH and CALANIT DIVA JACUBOVICH individually and on behalf of THE ESTATE OF MANUEL JACUBOVICH, Plaintiffs AND: THE STATE OF ISRAEL and COMPUTERSHARE TRUST COMPANY OF CANADA, Defendants

BEFORE: Justice M.D. Sharma

COUNSEL: Jonathan C. Lisus, Nadia Campion and Lars Brusven for the Defendant/Moving Party, The State of Israel Michael Schafler and Matthew Bradley for the Defendant/Moving Party, Computershare Trust Company of Canada H. Scott Fairly, Ruzbeh Hosseini, and N. Joan Kasozi for the Plaintiffs/Responding Parties

HEARD: June 11, 2021 (in writing)

ENDORSEMENT

[1] This is my cost decision arising from my decision on the defendants’ motion to stay this action, released May 14, 2021.

[2] In the motion, Israel argued that this court lacks jurisdiction simpliciter, that it is not a convenient forum, and that Israel as a sovereign nation is immune from the jurisdiction of Ontario’s courts. Computershare Trust Company of Canada (CTCC) only argued that Ontario is not a convenient forum.

[3] I found this Court does not possess jurisdiction simpliciter over the plaintiffs’ action. In addition, I found that if this Court does possess jurisdiction simpliciter, Israel is the more appropriate forum for hearing this case. Given these conclusions, it was not necessary for me to deal with the state immunity argument. As a result, the defendants’ motion to stay this action was granted. I invited cost submissions if parties could not agree on costs.

[4] Israel seeks partial indemnity costs on this motion in the amount of $151,974.57, inclusive of fees, disbursements and HST.

[5] CTCC seeks partial indemnity costs on this motion in the amount of $110,000.

[6] The plaintiffs’ position is that the requested quantum of costs is unreasonable, and that there is an argument that Israel is not entitled to any costs because of their conduct prior to this litigation commencing.

[7] Pursuant to s. 131(1) of the Courts of Justice Act, the Court has a broad discretion when determining the issue of costs. Rule 57.01(1) sets out the factors to be considered by the Court when fixing costs.

[8] The overall objective of fixing costs is to determine an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v Public Accountants Counsel for Ontario, 2004 CanLII 14579 (ON CA), [2004] OJ. No. 2634 (C.A.). In determining the costs issue, I have considered the factors set out in rule 57.01(1), as well as the principle of proportionality set out in rule 1.04(1.1). I keep in mind the Court should seek to balance the indemnity principle with the fundamental objective of access to justice.

[9] The defendants were entirely successful on their motion.

[10] I also accept that the issue had a level of complexity given the number of prior proceedings and some expert evidence on the law in other jurisdictions. Having said that, the legal principles to be applied were not exceedingly complex and were well established. The hearing of this motion also concluded in one day.

[11] The effort engaged in defending this motion consisted of responding to four affidavits adduced by the plaintiff, the preparation of the defendants’ own affidavits (which were relatively brief), and the preparation of factums. There were also cross-examinations on those affidavits. There was also an expert report that the plaintiff adduced, which the defendants relied upon in their argument.

[12] The plaintiffs argue I should consider the conduct of Israel. The plaintiffs adduced evidence on the motion that during an appeal before the United States Court of Appeals for the Second Circuit, the Court asked why Israel’s counsel had not advised the plaintiffs to litigate this matter in Ontario. If Israel was of the view that the only proper forum to litigate this issue was in Israel, the plaintiffs argue Israel should have advised the plaintiffs before the commencement of this action.

[13] This does not weigh into my decision-making in this cost award. Israel did communicate its intention to bring this motion to the plaintiffs, and at which point, the plaintiffs could have abandoned this action, sparing the hearing of this motion and the associated costs. While I am of the strong view that Israel should seek a cooperative resolution of this matter without compelling the plaintiffs to litigate in any jurisdiction, it is not the role of Israel to provide legal advice to the plaintiffs on the jurisdiction in which they should litigate.

[14] In my view, while the defendants were entirely successful, I find that the partial indemnity cost orders they each seek are excessive. It was not a lengthy hearing, did not involve many documents, and while there was some complexity, it was not exceedingly complex. This court must also be mindful of the principle of proportionality and access to justice.

[15] Accordingly, I order the plaintiffs to pay $50,000 in costs to Israel, and $36,000 in costs to CTCC, both inclusive of disbursements and HST. These amounts are payable within 30 days.

Justice Mohan D. Sharma

Date: June 11, 2021