Court File and Parties

DATE: 2022-07-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Capital SCL Inc., 2593820 Ontario Inc., and EMC3 Technologies Inc., Plaintiffs

– AND –

Spotless Consultancy Inc., Ciara McHale, and Yahya Dikeni Hashiru a.k.a. Yahya Hashiru, Defendants

BEFORE: E.M. Morgan, J.

COUNSEL: Jordan Goldblatt and Morgan McKenna, for the Plaintiff

Sarah Spitz and Leah Cummings for the Defendant, Yahya Dikeni Hashiru

HEARD: May 2, 2022

COSTS ENDORSEMENT

[1] The Plaintiffs were granted and then extended a worldwide Mareva injunction against the Defendant, Yahya Dikeni Hashiru. The allegations are that Mr. Hashiru convinced the Defendant, Ciara McHale – who is the office manager and ex-wife and mother of the father-daughter team that runs the Plaintiff companies – to transfer him some $2.8 million from those companies.

[2] Being an interlocutory injunction, the grounds for the injunction were established on the evidence in the record, but the allegations were not proved or tested by a full defence of the claim. Mr. Hashiru appeared at the motion before me and has retained counsel to pursue his defence.

[3] An award of costs is discretionary under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the guidance provided by 57.01 of the Rules of Civil Procedure. That guidance includes, inter alia, the ability to consider “any other matter relevant to the question of costs” in order to make whatever cost order appears to be fair and just depending on the circumstances of each case: Boucher v. Public Accountants (2004), 2004 14579 (ON CA), 188 OAC 201 (Ont CA).

[4] Counsel for Mr. Hashiru submit that the principal of fairness governing a costs award in an interlocutory injunction have been set out most succinctly by this Court in Accreditation Canada International v. Guerra, 2016 ONSC 6184, at para 9, quoting Robert J. Sharpe, Injunctions and Specific Performance (Toronto: Canada Law Book, Thomson Reuters Canada, 1992) (loose-leaf 2018), at p. 2-91:

Where the defendant successfully resists the plaintiff's motion for an interlocutory injunction, costs may be awarded forthwith. It has been held that where the motion was groundless and based upon unfounded allegations of fraud, deceit and conspiracy, it may be appropriate for the court to fix the costs on a solicitor and client scale and require that they be paid forthwith. On the other hand, it would be unusual to award costs of an interlocutory injunction motion to the successful plaintiff prior to trial. As there has been no final determination of the rights of the parties, but rather an order to protect the plaintiff's position pending trial, the preferable course is to reserve the question of costs to the trial judge. [Emphasis added].

[5] This approach was followed by Perell J. in In Quizno’s Canada Restaurant Corporation v. 1450987 Ontario Corp., 2009 31599 (SCJ). He reasoned that for an interlocutory matter awarding costs in the cause is “the preferable course because it allows the court to have the benefit of hindsight and to avoid the possible injustice of awarding costs to a plaintiff for having succeeded in obtaining an order to protect his or her position pending trial when the outcome of the trial reveals that that plaintiff’s position was not worthy of having been protected.”

[6] It is not clear at this stage of the action that the granting of the Mareva injunction has put an effective end to the proceedings or that the interlocutory injunction has determined the issues with finality: Rogers Cable T.V. Ltd. v. 373041 Ontario Ltd., [1994] OJ No 1087 (Gen Div) at para 4. There are certainly factual disagreements remaining between the parties. In any case, Mr. Hashiru’s assets are subject to the Mareva injunction until the matter is determined with finality, thereby protecting the Plaintiffs if they are ultimately successful.

[7] Under the circumstances, I would order that costs of the motion before me be in the cause.

Morgan, J.

Date: July 18, 2022