COURT FILE NO.: CV-20-651791
DATE: 2022 09 22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALIREZA ALIZILOUBAF aka ALI ZILOUBAF and 2570701 ONTARIO INC., Plaintiffs
- and -
MOHAMMAD KAZEM ABAZARI also known as ABAZARI MOHAMMAD KAZEM, MASTER VENUS INC., NASSER NEMATI also known as NASSER NEMATISOULDOROGH, MARYAM PIROZRAD, and JOHN DOE, Defendants
BEFORE: Associate Justice Todd Robinson
COUNSEL: A. Kamyab, for the defendants, Mohammad Kazem Abazari and Master Venus Inc.
J.D. Martin, for the plaintiffs
HEARD: In writing
COSTS ENDORSEMENT
[1] The parties have been unable resolved costs of the motion and cross-motion before me. I have now had an opportunity to review and consider their written costs submissions.
[2] The defendants, Mohammad Kazem Abazari and Master Venus Inc. (the “Abazari Defendants”), seek their substantial indemnity costs of $21,515.63 or, in the alternative, partial indemnity costs of $14,343.75, plus disbursements. The plaintiffs position is that no reason has been made out to award substantial indemnity costs and, given divided success, the Abazari Defendants should receive only half the costs to which they would otherwise be entitled. The plaintiffs have made submissions on how that entitlement should be calculated, resulting in a proposed partial indemnity costs award in the range of $6,000 to $7,500.
[3] The claim by defendants for substantial indemnity costs is essentially grounded in an argument that the plaintiffs’ claim clearly lacks merit and has unnecessarily delayed the proceeding. In deciding the motions, I did hold that there was no serious issue to be tried, but that decision was based on the record before me. I have not decided the parties’ dispute over the mortgage. My decision is not a finding that the plaintiff cannot prove its case.
[4] I specifically noted at para. 9 of my decision that finally resolving the dispute over the purpose of the mortgage transfer was beyond the scope of the motions before me. I also did not accept the Abzari Defendants’ argument that the plaintiffs’ claim was meritless, noting at para. 27 of my reasons that the evidentiary record was insufficient to fairly assess the merits of the case. The result that I reached was based largely on unexplained evidentiary gaps and lack of corroboration for statements made by the plaintiff.
[5] The Court of Appeal has clearly articulated that costs awards on an elevated scale are justified in only very narrow circumstances, namely where an offer to settle is engaged or where the losing party has engaged in behaviour worthy of sanction. Substantial indemnity costs is scale to which the court normally resorts when it wishes to express its disapproval of the conduct of a party to the litigation: Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766 at para. 8. Despite the Abazari Defendants’ submissions, I find no sanctionable conduct by the plaintiffs warranting an elevated scale of costs. An unsuccessful argument is not the same as an ill-conceived or meritless one.
[6] I agree with the plaintiffs that there was a measure of divided success. However, the Abazari Defendants were entirely successful in obtaining the most heavily disputed relief on the motions. Although the Abazari Defendants did not obtain their requested security for costs, in my view, that should not result in a substantial reduction to a costs award. I did grant a stay of proceedings pending payment of the outstanding costs award ordered by Master Sugunasiri (as she then was), for which no adequate explanation for non-payment had been provided. That is itself a further measure of success in favour of the Abazari Defendants.
[7] The plaintiffs challenge the rate claimed and hours spent by the Azabari Defendants’ lawyer on the motions. They submit that the rate is high given counsel’s year of call and that total hours spent on legal research and factum preparation are excessive. I tend to agree that the hours claimed for research and factum preparation are high and beyond reasonable expectations for these motions. Notably, only three cases were referenced by the Azabari Defendants in their factum and included in their book of authorities, all of which are leading cases. There is also 5 hours claimed for “Compiling Motion Record & Affidavit”, which is in addition to time spent on drafting the supporting affidavit and factum. As described, it appears to be work that ought to have been performed by administrative staff with only review time required by a lawyer.
[8] Disbursements are also not particularized. Despite the Abazari Defendants’ cost outline expressly stating that disbursements are “particularized in the attached appendix”, there is no appendix. A lump sum claim is included in the fee chart for $1,361.40, described only as “Disbursements including HST (photocopying, phone card, supplies, etc.)”. I fail to see how a phone card and general “supplies” are properly claimable disbursements on a motion. Also, based on the affidavits of service filed, the Abazari Defendants’ materials were all served electronically. I am unclear what photocopying charges were necessary. In the absence of any particularization of claimed disbursements, I am only prepared to award the motion filing fee.
[9] With respect to other factors outlined in rule 57.01(1) of the Rules of Civil Procedure, RRO 1990, Reg 194, I accept that the issues on this motion were important to both sides and do not find the partial indemnity costs claimed by the Abazari Defendants to be outside reasonable expectations for an opposed motion of this nature. I agree with the plaintiffs that the Abazari Defendants are over-stating the complexity of the motion, but do not agree that it was not complex. In my view, the motion was of moderate complexity.
[10] For the reasons outlined above, and weighing the factors in subrule 57.01(1), I find that the fair and reasonable amount of costs payable by the plaintiffs to the Abazari Defendants in respect of the motions is $10,000.00, inclusive of HST and disbursements, payable within thirty (30) days. Order accordingly.
ASSOCIATE JUSTICE TODD ROBINSON
DATE: September 22, 2022