Court File and Parties

COURT FILE NO.: CV-19-00627630

DATE: 20210614

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Firouzeh Zarabi-Majd, Applicant

AND:

Levitt LLP, Respondent

BEFORE: C.J. Brown J.

COUNSEL: Tatha Swann, for the Respondent

HEARD: September 16, 2020

Costs ENDORSEMENT

[1] The respondent, who was wholly successful on this application, seeks its costs of the application on a substantial indemnity basis. Although both parties were requested to provide submissions on costs, the applicant has not done so. I understand that her counsel is no longer on the record, and the applicant has chosen not to provide submissions.

[2] Costs generally follow the event. Costs are intended to compensate the successful party or parties to the litigation, wholly or in part, for legal expenses that the party or parties have incurred. In general, costs are awarded on a partial indemnity basis. However, elevated costs or substantial indemnity costs are awarded, inter alia, where there is a finding of reprehensible, scandalous or outrageous conduct on the part of the party against which the costs award is being made: Mars Canada Inc. v Bemco Cash & Carry Inc., 2018 ONCA 239, paras 43-44; Toronto Star Newspaper v Fraleigh, [2011] O.J. No. 3689, 2011 ONCA 555, 2009 ONCA 722 (C.A.); Davies v Clarington (Municipality), [2009] O.J. No. 4236, 2009 ONCA 722 (C.A.), Walker v Ritchie, 2005 CanLII 13776 (ON CA), [2005] O.J. No. 1600, 12 CPC (6^th) 51 (C.A.), rev’d on other grounds 2006 SCC 45, [2006] S.C.J. No. 45, [2006] 2 S.C.J. 428 (S.C.C.).

[3] Pursuant to the Courts of Justice Act and the Rules of Civil Procedure, this Court has wide discretion in awarding costs: Courts of Justice Act, RSO 1990, c. C. 43, s. 131; Rules of Civil Procedure, RRO 1990, Reg. 194, R. 57.01.

[4] Costs must be fair and reasonable and within the expectations of the parties. Boucher v Public Accountants Counsel for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634, 71 O.R.(3d) 291 (Ont. C.A.).

[5] As regards the factors set forth at Rule 57.01, to be considered in exercising my discretion to fix costs, I make the following comments:

Importance and Complexity: The matter was of importance to the parties. The issues were not complex.

Experience of Counsel: Counsel for the respondents had 10 years’ experience.

Hours spent: In reviewing the breakdown of fees charged by the various lawyers working on the file, it appears that work was allocated and delegated in a proportional manner. There appeared to be little or no overlap.

Expectations and Proportionality: I am of the view, having reviewed the costs of all parties, including the applicant, that the amounts sought by the respondent are fair and reasonable. It is difficult to consider whether the costs were within the expectations of the opposing party, as she has filed no submissions or bill of costs.

Conduct of the parties/improper or unnecessary steps/denial or refusal to admit things that should have been admitted:

It is the position of the respondent that the applicant, through her conduct, lengthened and delayed the proceeding and, further, has driven up the costs of the proceeding.

Approximately six months prior to the hearing of the application, the respondent consented to the relief sought by the applicant in the application record, including an order referring the matter to assessment.

However, the applicant did not respond to its consent until just prior to the hearing, when she advised that she was proceeding with the application and raising new issues. This required the respondent to file substantial responding materials.

The new issues included maintaining that the applicant had never retained Levitt LLP, contrary to her own documentation which indicated that she did; requiring disgorgement of funds despite the fact that she had paid no monies which could be disgorged; and seeking an order that she owed Levitt LLP no fees for any of the work they provided on her behalf.

None of the issues raised had any or sufficient merit to be successful.

As regards the conduct of the applicant, the respondent further submits that at the time of and following the hearing, the applicant had posted and continues to post on her public Twitter account (“Dirty Shades of Blue”) abusive, uncivil, vulgar profanities and expletives regarding the respondent, as a result of which substantial indemnity costs should be granted.

[6] I have taken all of the foregoing into account.

[7] While I find the applicant’s conduct leading up to the hearing, as well as her use of social media to attack the respondent in foul, disgusting language, cannot be condoned, I am of the view, nevertheless, that substantial costs are not warranted in all of the circumstances of this case.

[8] I award costs to the respondent, payable forthwith by the applicant in the amount of $27,466.60 all-inclusive.

C.J. Brown J.

Date: June 14, 2021