Court File and Parties

COURT FILE NO.: CV-19-623814

WRITTEN COSTS SUBMISSIONS FILED: 20201019

COSTS ENDORSEMENT RELEASED: 20210119

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

MARYAM REZAEE Plaintiff

• and-

RAYMOND ZAR, ROEHAMPTON CAPITAL CORPORATION, 30 ROE INVESTMENTS CORPORATION, MARY-AM HOSPITALITY CORPORATION, MARYAM TRAVEL INC., MARY-AM CORPORATION, MARYAM MAIDS INC., 170 WILLOWDALE INVESTMENTS CORPORATION, ZAR ADVISORY GROUP AND ZAR GROUP Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: M. Rezaee Email: maria.rezaee@gmail.com; niaz_salimi@yahoo.com

• Plaintiff, Self-Represented

L. Thacker and V. Mishra Email: vmishra@litigate.com

• for the Defendants

COSTS ENDORSEMENT RELEASED: January 19, 2021

Costs Endorsement

I. Background

[1] On July 18, 2019, the Plaintiff brought an ex parte motion (the “CPL Motion”) for leave to issue Certificates of Pending Litigation (the “CPLs”) with respect to 11 properties which were at issue in this action (the “Properties”). I declined to grant the CPLs on an ex parte basis however, among other things, I ordered the Defendants not to further encumber or transfer the Properties pending a final disposition of the CPL Motion without consent of the Plaintiff or further order of the court (the “Interim Order”).

[2] The Plaintiff subsequently brought an injunction motion to remove the Defendant Raymond Zar from management of the corporate Defendants and to prevent Mr. Zar from selling or encumbering the Properties (the “Injunction Motion”). The parties agreed to have both the Injunction Motion and the CPL Motion heard by a Judge. During a telephone case conference before me on October 22, 2019, the parties spoke to the Interim Order ultimately agreeing to have further discussions with respect to potentially varying the terms to permit Mr. Zar to obtain financing.

[3] By Reasons For Judgment of Justice Sossin dated May 15, 2020, the Injunction Motion was dismissed. Justice Sossin directed the parties to attend before me if the Plaintiff intended to proceed with the CPL Motion and/or if the Defendants wished to bring a motion to vary the terms of the Interim Order.

[4] The CPL Motion came back before me on another telephone case conference on June 11, 2020. The Plaintiff had served a Notice of Discontinuance and Plaintiff’s counsel advised that they were getting off the record. Given the discontinuance, by Order dated June 11, 2020, unopposed by the Plaintiff, I terminated the terms of the Interim Order and ordered a timetable for written costs submissions related to the CPL Motion.

[5] The Defendants seek costs of the CPL Motion in the amount of $7,983.82 on a substantial indemnity scale or in the alternative, $6,197.87 on a partial indemnity scale. The Plaintiff, now self-represented, has filed a Costs Outline dated April 22, 2020 prepared by her former counsel which makes no reference to the CPL Motion and appears to be in support of costs in the amount of $69,443 on a partial indemnity scale for the Injunction Motion.

II. The Law and Analysis

[6] 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).

[7] The overriding principles in determining costs are fairness and reasonableness (Boucher v. Public Accountants Council for the Province of Ontario, (2004) 2004 CanLII 14579 (ON CA), 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) (2005), 2005 CanLII 16071 (ON CA), 75 O.R. (3d) 405 (C.A.); 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 at paras. 10, 12-14).

[8] The CPL Motion was not determined on its merits. The Plaintiff elected to discontinue this action and abandon the CPL Motion after she was unsuccessful on the Injunction Motion. Accordingly, costs of the CPL Motion cannot be awarded on the basis of the result or relative success.

[9] However, I am satisfied that the Defendants are entitled to costs of the CPL Motion on the basis of the Plaintiff’s conduct which unnecessarily lengthened the proceeding and unnecessary steps taken by the Plaintiff (Rule 57.01(1)(e)(f)). Specifically, although the CPL Motion was not argued, by pursuing it, obtaining the Interim Order then ultimately abandoning it, the Plaintiff caused the Defendants to incur unnecessary costs primarily related to the telephone case conferences, discussions and correspondence related to the Interim Order and the possibility that the CPL Motion may proceed. While the Plaintiff caused the Defendants to incur unnecessary costs, I am not satisfied that the conduct of the Plaintiff was abusive, reprehensible or egregious so as to call for costs on a substantial indemnity scale (Standard Life Assurance Co. v. Elliot, 2007 CanLII 18579 (ON SC), [2007] O.J. No. 2031 (S.C.J.) at paras. 9-10; Dyke v. Metropolitan Toronto Condominium Corporation No. 972, 2015 ONSC 2022 at para. 10).

[10] The Defendants made an offer to settle the CPL Motion and the Injunction Motion on March 22, 2020 pursuant to which the CPL Motion would have been dismissed and the Interim Order set aside on a without costs basis. While, at least as far as the CPL Motion is concerned, this did not constitute a Rule 49.10 offer to settle, I have considered this offer in determining costs as provided in Rule 57.01(1).

[11] Having reviewed the Costs Outlines and considered the relevant factors, I conclude that it is fair and reasonable in all of the circumstances and within the reasonable expectations of the parties for the Plaintiff to pay costs to the Defendants fixed in the amount of $6,000 payable within 30 days.

Costs Endorsement Released: January 19, 2021

Master M.P. McGraw