NEWMARKET COURT FILE NO.: CV-20-3195-00

DATE: 20221220

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Alireza Ghandchi

Applicant

– and –

Estate of Faezeh Falsafi, Ahmad Falsafi, and Shafigheh Alahyari

Respondents

Rick Bickhram, for the Applicant

Robert Levesque, for the Respondents

Mohammad Kandi, Estate Trustee for the Estate of Faezeh Falsafi

Benjamin Arkin, for the Estate Trustee

HEARD: August 25, 2022

REASONS FOR COSTS

Casullo J.

Overview

[1] On November 15, 2022, I released my reasons finding that (a) the divorce decree issued by the Republic of Iran on October 14, 2015, between the Applicant and the deceased, Faezeh Falsafi, was valid, and (b) the Applicant was not entitled to dependent relief.

[2] In other words, the Respondents were wholly successful in having the Applicant’s Application dismissed.

[3] The parties were unable to agree on costs, and what follows is my decision after considering written submissions.

Positions of the Parties

[4] The Respondents ask for their costs of the Application on a substantial indemnity basis, in the amount of $84,000. Their rationale for costs on this scale is grounded in the fact that the Applicant took positions that lacked an air of reality. In such instances, costs on a substantial indemnity basis may be awarded: see Alguire v. The Manufacturers Life Insurance Company (Manulife Financial), 2018 ONCA 202, 140 O.R. (3d) 1, at para. 38.

[5] The Applicant seeks an order that the estate bear the costs of litigation for all parties. His costs on a partial indemnity scale are $51,180.20.

[6] He submits that costs should be borne by the estate because,

In the matter at hand, as the Deceased did not have a Will and there was ambiguity in relation to their marital status at the time of death. There was nothing to reflect the intention of the Deceased or to ensure that the Estate was properly administered. Thus, costs should be ordered from the Estate as the action giving rise to the Application was caused by the Deceased as she did not have a Will.

[7] All costs as noted are inclusive of disbursements.

Analysis

[8] Determining costs is a discretionary function of the court, governed by s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and r. 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).

[9] In George v. Landels, 2012 ONSC 6608, at para. 4, Boswell J. set out the general principles governing costs assessments:

The award of costs is governed by section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43 and by Rule 57.01 of the Rules of Civil Procedure. Section 131 provides for the general discretion to fix costs. Rule 57.01 provides a measure of guidance in the exercise of that discretion by enumerating certain factors that the court may consider when assessing costs. In addition, the Court must always be mindful of the purposes that costs orders serve. As Perell J. summarized in 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, [2010] O.J. No. 5692 (S.C.J.), at para. 10:

Modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements (internal citations omitted).

[10] Rule 57.01 lists the following factors for the court to consider when exercising its discretion to award costs:

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer;

(h.1) whether a party unreasonably objected to proceeding by telephone conference or video conference under rule 1.08; and

(i) any other matter relevant to the question of costs.

[11] The court should look to fix costs that are fair and reasonable, having regard to the expectation of the parties: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). Rule 57.01(0.b) confirms that the court should consider the reasonable expectations of the losing party.

Conclusion

[12] The Respondents successfully defended the Application, and I see no reason to depart from the standard that costs should follow the event.

[13] I take no issue with the amount of time docketed by counsel for the Respondents, nor with the hourly rates sought. The issues at stake spanned two countries, with vastly different laws, requiring significant time and effort to present the material in a cohesive manner to the court.

[14] The Applicant did serve an offer to settle within the timeframe prescribed by the Rules. However, I find it is an offer in name only, given that accepting it required the Respondents to agree that the Iranian divorce was invalid. In any event, the Applicant did not fare better than his offer.

[15] One of the considerations when determining costs is the reasonable expectations of the losing party. Here, the Applicant seeks $51,180.20 on a partial indemnity basis, not significantly different from the Respondents’ costs on the same scale.

[16] I give no weight to the Applicant’s submission that the estate should bear the costs of the Application. As the Court of Appeal for Ontario stated in McDougald Estate v. Gooderham (2005), 2005 CanLII 21091 (ON CA), 199 O.A.C. 203, at para. 85, “Gone are the days when the costs of all parties are so routinely ordered payable out of the estate that people perceive there is nothing to be lost in pursuing estate litigation”. The suggestion that this litigation was necessary because Faezeh did not have a will is incongruous. The issue the court was required to determine had nothing to do with the creation or substance of a will, or any avoidable error of the testator. The impetus behind the Application lays solely at the feet of the Applicant.

[17] That said, I am not satisfied that costs on a substantial indemnity scale are warranted. The Applicant was entitled to his day in court, however distasteful his position might have been to the Respondents.

[18] Taking all of these factors into account, I award the Respondents partial indemnity costs of $50,000, inclusive of disbursements, payable forthwith.

CASULLO J.

Released: December 20, 2022