Court File and Parties

Court File No.: CV-21-00673361-0000 Date: 2022-08-02 Superior Court of Justice - Ontario

Re: Sanaz Shirkhodaeitari, Plaintiff And: Fatemeh Farzaneh Farkhondeh, Defendant

Before: Vermette J.

Counsel: Avrum Slodovnick, for the Plaintiff Dimitrios Mylonopoulos, for the Defendant

Heard: In writing

Endorsement

[1] On June 28, 2022, I released an endorsement granting leave to the Plaintiff to issue a certificate of pending litigation ("CPL") and to register same against title to a residential property (2022 ONSC 3864).

[2] The parties were not able to agree on costs and have delivered costs submissions.

Positions of the parties

a. Position of the Plaintiff

[3] The Plaintiff requests costs on a partial indemnity scale in the amount of $10,750.00, inclusive of disbursements and HST. She states that she was entirely successful on the motion and submits that this amount would fairly and reasonably indemnify her in all the circumstances.

[4] The Plaintiff points out that there were three court attendances, one adjournment requested by the Defendant, multiple records and multiple facta. She notes that in his endorsement at Civil Practice Court, Justice Myers encouraged the Defendant not to resist the motion for a CPL and, instead, to seek to move forward with the litigation. According to the Plaintiff, if the Defendant "had heeded Justice Myers' admonition", the Plaintiff and the Defendant could each have been spared a lot of costs.

b. Position of the Defendant

[5] The Defendant states that the trajectory by which the Plaintiff's motion ultimately found itself before me was "somewhat out of the ordinary" and that the Plaintiff brought the motion in the improper forum (i.e. the motion should have been brought before an Associate Judge). She submits that the Plaintiff cannot complain about steps to which she consented, including an extension of the timetable for service of the Defendant's Factum and an adjournment of the motion. The Defendant argues that the motion was not complex.

[6] The Defendant's costs outline reflects costs on a partial indemnity scale in the amount of $5,409.49. She submits that the costs sought by the Plaintiff in the amount of $10,750.00 are higher than what any party would reasonably expect to incur in relation to this step of the proceeding.

Discussion

[7] I note that the partial indemnity rates of senior counsel on both sides is the same. The partial indemnity rate of the Defendant's second lawyer who is more junior is understandably lower.

[8] The Plaintiff's counsel spent approximately 40 hours on this motion. The Defendant's counsel collectively spent approximately 27.5 hours. The Plaintiff filed more materials than the Defendant so it is not surprising that more time was spent on the Plaintiff's side.

[9] I have reviewed the Plaintiff's costs outline and I find that the time spent, the partial indemnity rate and the costs sought are generally reasonable in the circumstances. However, I will apply a small reduction to take into account the "jurisdictional mix-up" and the fact that some of the work could have been delegated to a timekeeper with a lower hourly rate.

Conclusion

[10] Taking the foregoing into account, as well as the factors set out in Rule 57.01(1) of the Rules of Civil Procedure and the reasonable expectations of the parties, I find that the fair and reasonable award of costs in favour of the Plaintiff is on a partial indemnity basis in the all-inclusive amount of $9,000.00. The costs are to be paid by the Defendant to the Plaintiff within 30 days.

Vermette J.

Date: August 2, 2022