Court File and Parties

COURT FILE NO.: CV-22-00677148-0000 DATE: 2022-10-19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALEXIS GIRGIS, Plaintiff AND: RAYMOND ZAR, ZAR ADVISORY CORPORATION and ROEHAMPTON CAPITAL, Defendants

BEFORE: VERMETTE J.

COUNSEL: Muneeza Sheikh and Katherine Golobic, for the Plaintiff David Greenwood, for the Defendants

HEARD: In writing

ENDORSEMENT AS TO COSTS

[1] On June 24, 2022, I released an endorsement (2022 ONSC 3784) dismissing the motion for partial summary judgment of the Defendant Roehampton Capital (“Defendant”).

[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 seeks costs on a substantial indemnity basis in the amount of $21,854.72 or, in the alternative, on a partial indemnity basis in the amount of $14,588.40.

[4] The Plaintiff states that he was entirely successful on the motion and that, as the successful party, he is entitled to his costs. According to the Plaintiff, the timing of the motion increased the complexity of the matter and the work required. He points out that the motion was brought at a very early stage in the litigation, prior to documentary disclosure and discoveries. The Plaintiff argues that since the Defendant’s motion record contained very little documentary evidence in support of its position, the Plaintiff was put to the additional expense of seeking out this information himself in order to properly defend the motion.

[5] The Plaintiff notes that the parties’ respective costs outlines are comparable. The Defendant’s costs outline reflects costs on a partial indemnity basis in the amount of $14,049.84.

[6] Finally, the Plaintiff argues that the Defendant’s conduct should be deemed by this Court to be “reprehensible” and warranting substantial indemnity costs.

b. Position of the Defendant

[7] The Defendant submits that the entitlement to costs with respect to this motion should be considered in light of the following factors:

a. The Plaintiff was unsuccessful in his attempt to have the motion adjourned as a result of his decision not to conduct cross-examinations. The Defendant argues that the costs associated with the Plaintiff’s unsuccessful adjournment request ought to be offset against any costs found owing to the Plaintiff in respect of the motion for summary judgment. The Defendant submits that a reasonable costs award in its favour in respect of the adjournment request is $1,500.

b. The Plaintiff consented to having the questions at issue in the motion heard by way of summary judgment, but later changed his mind and took the position that summary judgment was not appropriate in the circumstances.

c. The Plaintiff’s success on the motion was based on a legal argument put forward by the judge hearing the motion, not one raised by the Plaintiff.

[8] The Defendant also submits that this is not a case where substantial indemnity costs are warranted. In its view, it cannot be said that its conduct in respect of this motion has been reprehensible, scandalous or outrageous.

[9] According to the Defendant, a reasonable award of costs to the Plaintiff is $10,000 in the cause.

Discussion

[10] As has been observed in many cases, costs on an elevated scale are exceptional and are reserved for those situations when a party has displayed reprehensible, scandalous or outrageous conduct: see Quickie Convenience Stores Corp. v. Parkland Fuel Corporation, 2021 ONCA 287 at para. 4. This is not such a case.

[11] I agree with the Defendant that the Plaintiff has to take some of the blame for the bringing of this motion. At the Civil Practice Court attendance, the Plaintiff agreed that summary judgment was an appropriate way in which to address the issues between the parties. No one alerted the Civil Practice Court judge that the proposed motion was a motion for partial summary judgment. Further, the Plaintiff failed to comply with the court-ordered timetable with respect to cross-examinations and unsuccessfully sought to adjourn the motion. In light of the foregoing, I find that the figure proposed by the Defendant, i.e. $10,000 on a partial indemnity basis, is appropriate and reasonable.

[12] However, there is no reason in this case to order costs to be payable in the cause and to depart from the regular rule that the costs of the motion should be fixed and ordered to be paid within 30 days: Rule 57.03(1) of the Rules of Civil Procedure.

Conclusion

[13] 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 $10,000.00. The costs are to be paid by the Defendant to the Plaintiff within 30 days.

Vermette J.

Date: October 19, 2022