Court File and Parties

COURT FILE NO.: CV-15-522676 DATE: 20221214

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Syed Abid Hussain and Rubina Abid, Plaintiffs – AND – Daya Singh Flora and Balbir Flora, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Simon Bieber and Rebecca Kennedy, for the Plaintiffs Doug Bourassa, for the Defendants

HEARD: Cost submissions in writing

COSTS ENDORSEMENT

[1] After a 7-day trial, I released my judgment on September 19, 2002 granting the Plaintiffs the relief they sought. They are entitled to their costs.

[2] Counsel for the Plaintiffs seek costs on a partial indemnity basis from the inception of the action up until December 2015 and on a substantial indemnity basis thereafter. The Plaintiffs made a Rule 49 offer on December 30, 2015 that turns out to have been more favorable to the Defendants than my judgment ultimately was. Had the Plaintiffs’ offer been accepted, the parties would have equally shared liability for a $1.15 million mortgage on their co-owned property. In my judgment, on the other hand, I held that the Defendants alone are responsible for the mortgage.

[3] Accordingly, the Plaintiffs are entitled to substantial indemnity costs from the date of the offer.

[4] The Plaintiffs’ total claim for costs breaks down as follows:

Partial indemnity costs to December 30, 2015 $ 43,507.50

Substantial indemnity from December 31, 2015 to trial 618,923.00

Total $662,430.50

[5] Counsel for the Defendants submits that this amount is disproportionately high. I note, however, that this trial involved determining ownership of a commercial property of some value. While I do not have an appraisal of the property, as noted above it is valuable enough that the Defendants managed to obtain a $1.15 million mortgage on it. In addition, I determined that the Plaintiffs are entitled to a substantial payout of accumulated income from the property.

[6] Given the financial significance of the claim to the Plaintiffs and the complexity of the issues, I have no reason to question the number of hours and resources invested in this case by Plaintiffs’ counsel. They put in what it took to bring this protracted action to trial and to a successful conclusion.

[7] Perhaps more importantly, the Defendants are for the most part responsible for the significant expense they now incur. The action took 9 years to get to trial. That was the fault of the Defendants (although, to be sure, not of Defendants’ present counsel, who only took over that role just before trial and was very professional and efficient). At the outset of trial, I heard a motion by the Plaintiffs which caused me to review some of the pre-trial procedural history: Hussain v. Flora, 2022 ONSC 3100.

[8] In my endorsement, I first summarized a series of motions for production that the Plaintiffs had to bring:

[2] The successive Orders include: Kristjansen J. (May 11, 2017, ordering production of financial records), Sanderson J. (Nov 23, 2018, following up on the initial production Order), Allen J. (April 12, 2019, giving the Defendants “one last chance” to make full documentary production), Chalmers J. (June 15, 2021, following up on outstanding undertakings and production requirements at a telephone case conference), Chalmers J. (Sept 15, 2021, ordering further production at yet another case conference).

[9] I then observed how difficult the Defendants had made the action to pursue:

[7] I note that the last affidavit of documents produced by the Defendants was on April 18, 2019, in response to Justice Allen’s order. As indicated above, Her Honour’s endorsement at the time specifically said that the Defendants are getting “one last chance” to make the proper productions. Clearly, up until then the Defendants’ production had been deficient. The Defendants took Justice Allen up on this chance, and they followed up her Order promptly with some further financial production. It is apparent, however, that this was still not sufficient, as Justice Chalmers issued two more Orders to the same effect in 2021. Both times he ordered that the Defendants complete their production obligations.

[10] The Defendants’ approach is not only problematic in terms of delay, it is costly. The Court of Appeal has been outspoken on the need for delay tactics, and especially for non-production tactics, to cease so that the litigation system can more properly serve the public. In Falcon Lumber Limited v. 2480375 Ontario Inc., 2020 ONCA 310, at para 43, Justice D.A. Brown stated: “The goal of Ontario’s civil justice system is to provide the public with the just, most expeditious, and least expensive determination of every civil proceeding on its merits. To achieve that goal, parties to every action must comply with their document disclosure and production obligations without the need for a court to intervene to compel their adherence.” [citations omitted]

[11] In view of the procedural history and their approach to the entire action, for which they had been repeatedly admonished, the Defendants certainly knew what was coming if they were to lose the case. Rule 57.01(1)(0.b) of the Rules of Civil Procedure directs the Court to take into account the parties’ expectations in determining costs.

[12] Now that the Defendants have indeed lost, what has come is a rather large, but under the circumstances reasonable and deserving bill. The Defendants will know that it comes from the party that they tried for years to wear down.

[13] Rounding off for convenience and ease of reference, the Defendants shall pay the Plaintiffs $650,000 in costs, inclusive of all fees, disbursements, and HST.

Date: December 14, 2022 Morgan J.