Court File and Parties

COURT FILE NO.: CV-19-627269

MOTION HEARD: 20210126

REASONS RELEASED: 20210429

WRITTEN COSTS SUBMISSIONS FILED: 20210512

COSTS ENDORSEMENT RELEASED: 20210827

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

ANDRIN HILLSBOROUGH LIMITED

Plaintiff

• and -

SHOHREH ELIASZADEH and HADI ELIASZADEH

Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: E. Mehrabi E-mail: mehrabi@mehrabilawoffice.com -for the Defendants

M. Magonet and D. Schatzker E-mail: m@magonetlaw.com -for the Plaintiff

COSTS ENDORSEMENT RELEASED: August 27, 2021

Costs Endorsement

I. Introduction

[1] The Defendants brought a motion for leave to amend their Defence and to add a Counterclaim and the Plaintiff brought a cross-motion to strike some paragraphs in part or in their entirety (Andrin Hillsborough Limited v. Eliaszadeh, 2021 ONSC 3229)(the “Reasons”)). The parties have filed written costs submissions as provided for in the Reasons.

[2] The Plaintiff seeks costs of the motions in the amount of $7,500 on a partial indemnity scale. The Defendants submit that the parties should bear their own costs. The Defendants further argue that if this Court orders the parties to bear their own costs then the Defendants should receive $1,000 for preparing their costs submissions due to a with prejudice settlement offer they made that the parties bear their own costs.

II. The Law and Analysis

[3] 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 its 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).

[4] 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.)). The general rule is that costs on a partial indemnity scale should follow the event except 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).

[5] The Plaintiff submits that it was wholly successful on the motions. The Defendants claim that success was equally divided. I disagree with both characterizations. A more accurate assessment is that the Plaintiff was substantially but not completely successful.

[6] I reject the Defendants’ submission that success was divided because they were granted leave to amend some of the disputed paragraphs and it therefore follows that the parties should bear their own costs. To accept this conclusion would be to ignore that every disputed paragraph or excerpt was struck in whole or in part with or without leave to amend. It would also minimize the extent of the amendments required for the Defendants to sufficiently plead the elements of each cause of action and supporting particulars. Accordingly, I conclude that there is no reason to depart from the general rule that the Plaintiff is entitled to costs to reflect this success. Costs should also be awarded to account for the Defendants’ opposition and positions which added time and cost to the motions (Rules 57.01(1)(e)(f)(g)).

[7] As the Reasons demonstrate, the confusion related to the Defendants’ use of the term “bad faith” consumed significant time and materials. The Defendants did not specifically plead the duty of good faith and honest performance and it was unclear if they were asserting this cause of action and/or a claim for bad faith. They confirmed during the motion that they were in fact pleading the duty of good faith and honest performance necessitating substantial amendments. Similarly, the Defendants did not plead the elements of their claims for negligence and intentional infliction of mental suffering. It was also necessary to strike some paragraphs without leave to amend where the Defendants had improperly pleaded settlement discussions and further paragraphs with leave to amend regarding allegations related to the appraised value, inability to secure financing and the Plaintiff’s denial of an abatement. The Defendants also withdrew their pleadings regarding rectification after the commencement of the motion.

[8] The Plaintiff was unsuccessful in arguing that it would suffer actual prejudice if any of the causes of action, allegations and/or paragraphs were permitted or that a fair trial would be delayed. I have taken this into consideration in determining the quantum awarded to the Plaintiff. The fact that the Defendants were granted leave to amend in many cases has also factored into my determination of the amount to be awarded.

[9] In determining the reasonable expectations of the parties, I have considered the Defendants’ Costs Outline which indicates that they would have sought $5,245.98 on a partial indemnity scale if successful on the motions. In all of the circumstances, I conclude that it is fair and reasonable for the Defendants to pay costs of the motions to the Plaintiff fixed in the amount of $6,000 on a partial indemnity scale within 60 days.

Released: August 27, 2021

Master M.P. McGraw