Court File and Parties

COURT FILE NO.: 05-CV-299825PD3 MOTION HEARD: 20210108 REASONS RELEASED: 20210409 WRITTEN COSTS SUBMISSIONS FILED: 20210816 COSTS ENDORSEMENT RELEASED: 20220127

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

VALENTINA AVDEEVA

Plaintiff

• and-

CAROLINE KHOUSHABEH, in her capacity as estate trustee for the estate of LEVON KHANKALDIYAN a.k.a. LEVON KHANKALDIYAN HAFTVAN, deceased

Defendant

BEFORE: ASSOCIATE JUSTICE McGRAW

COUNSEL: D. Wagner Email: dwagner@wagnersidlofsky.com -for the Defendant

R. Thapar Email: ray@thaparlaw.ca

• for the Plaintiff

COSTS ENDORSEMENT RELEASED: January 27, 2022

Costs Endorsement

[1] The Defendant brought a motion to dismiss this action for delay, the Defendant’s third motion to dismiss for delay. By Reasons For Endorsement dated April 9, 2021 (the “Reasons”) I dismissed the motion on terms, ordering an expedited timetable (Avdeeva v. Khankaldiyan, 2021 ONSC 2681; aff’d Avdeeva v. Khankaldiyan, 2021 ONSC 4302). I invited the parties to make written costs submissions if they were unable to agree.

[2] The Plaintiff seeks costs of the motion in the amount of $54,339.56 on a partial indemnity scale. The Defendant submits that no costs should be awarded. The Defendant further seeks costs of $1,500 for the preparation of her costs submissions based on her offer to settle for no costs.

[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 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 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] In my view, although the Defendant was unsuccessful in having this action dismissed, it was not unreasonable in all of the unique circumstances of this litigation for the Defendant to have brought the motion. At the time the motion was brought, this action was over 15 years old with over 30 court attendances. The Plaintiff’s delay in pursuing this action and the conduct of her previous counsel have been the subject of judicial criticism in some cases resulting in significant costs awards against the Plaintiff. The Plaintiff has acknowledged that she retained new counsel due in part to the courts’ criticism.

[6] In dismissing the Defendant’s first dismissal motion on August 6, 2015, Master Abrams held: “while I am not now dismissing the plaintiff’s claims, I do note that the plaintiff is perilously skirting the edge” and that she was “giving the plaintiff one last chance to do what she ought to have done before now – failing which she risks having her claims dismissed, with costs” (Avdeeva v. Khankaldiyan, 2015 ONSC 4984 at paras. 12, 14, and 17-18).

[7] The second dismissal motion came before me on September 1, 2017. I adjourned the second motion on the condition that it would proceed on November 3, 2017 peremptory on the parties if the Plaintiff did not serve her sworn Affidavit of Documents by September 8, 2017 and attend her examination for discovery by October 20, 2017 (September 1, 2017 Endorsement at p. 3). I noted that given the history of these proceedings it was imperative for the Plaintiff to follow through on making herself available for discovery and that no further indulgences would be provided (September 1, 2017 Endorsement at p. 2).

[8] The Plaintiff delivered her sworn Affidavit of Documents on time and offered to complete her examination for discovery from Russia virtually on October 3, 2017. However, disputes arose over arrangements for the Plaintiff’s examination and counsel appeared before me again on November 3, 2017. The Plaintiff’s examination for discovery finally proceeded on December 14-15, 2017. On March 10, 2018, the Defendant passed away staying the action until the Defendant obtained an Order to Continue on February 21, 2019.

[9] In addition to the history of these proceedings, there is little case law with respect to multiple dismissal for delay motions. I was only referred to one case which involved a third dismissal and the effect of previous findings (Armstrong v. McCall, 2006 17248 (ON CA), [2006] O.J. No. 2055 (C.A.)). In Armstrong, the Court of Appeal held that while the court may consider the overall delay in the litigation, the focus should be on any delay after the second dismissal motion.

[10] As set out in the Reasons, I concluded that much of the delay after the second dismissal order had been reasonably explained or was attributable to the procedural steps required due to the Defendant’s passing. Other than some delay in delivering her undertakings, there was no delay attributable to the Plaintiff after the second motion and no risk that a fair trial is no longer possible. In dismissing the motion on terms, I ordered an expedited timetable to ensure that this action and the Defendant’s related Application (another complicating factor) moved forward without further delay.

[11] The age of the action, the long history of previous overall delay, a good portion attributable to the Plaintiff and the Defendant’s passing are all part of the unique and complicated context of this litigation giving rise to the motion. In my view, having considered all of the relevant factors, including the expedited timetable ordered and the Defendant’s offer to settle costs, it is fair and reasonable in these circumstances for the parties to bear their own costs of the Defendant’s motion.

Costs Endorsement Released: January 27, 2022

Associate Justice McGraw