Court File and Parties
Court File No.: CV-21-00672008-0000 Date: 2023-04-27 Ontario Superior Court of Justice
Between: Aqeel Zaidi also known as Aqeel Abbas Zaidi, Applicant And: Estate of Asim Raza Syed and Rabab Fatima Naqvi, Trustee, Respondents
Counsel: Karanpaul Randhawa for the Applicant Ranbir S. Mann for the Respondents
Heard: In writing
Perell, J.
Reasons for Decision - Costs
[1] In a proceeding by application, the Applicant, Aqeel Zaidi (Mr. Zaidi), sued the Estate of Asim Raza Syed (Mr. Syed) and its trustee, Rabab Fatima Naqvi (Ms. Naqvi), who is the late Mr. Syed’s widow, to enforce a Settlement Agreement dated April 7, 2021. After some procedural wrangling, the application proceeded as if it was a motion and a cross-motion for a summary judgment.
[2] In the result, I awarded the money that had been paid into court ($109,283 plus any interest) to Ms. Naqvi. [1] I stipulated that if the parties could not agree about the matter of costs, they may make submissions in writing.
[3] The parties could not agree about costs.
[4] Ms. Naqvi claims costs on a substantial indemnity basis of $54,413.43 comprised of a counsel fee of $47,272.50, taxes of $6,259.95 and disbursements of $880.98. On a partial indemnity basis, the claim for costs is $36,607.45, all inclusive.
[5] Mr. Zaidi submits that in the circumstances of this case, each party should bear their own costs. He disputes any claim for costs based on a substantial indemnity claim. He submits that the appropriate award, if any, on a partial indemnity scale is $11,781.24, all inclusive. By way of comparison and contrast, he says that his costs claim would have been $14,232.51, all inclusive, on a substantial indemnity basis, and $9,087.85, all inclusive, on a partial indemnity basis.
[6] For the reasons that follow, I award, Ms. Naqvi $28,000, all inclusive.
[7] By way of a summary of my reasons for this judgment, once Ms. Naqvi had withdrawn her jurisdictional challenge about proceeding by application, for Mr. Zaidi to succeed he had to establish that there was a valid and enforceable Settlement Agreement and that there was no genuine issue requiring a trial about the validity of the agreement. Mr. Zaidi, however, failed to prove that there was no genuine issue about the validity of the Settlement Agreement. Rather, it was Ms. Naqvi who, based on the evidence presented to this court, met the onus of establishing that there was no genuine issue requiring a trial. She established that there was no genuine issue requiring a trial to determine that she is entitled to rescind the Settlement Agreement. I was satisfied that the alleged Settlement Agreement was unenforceable on the grounds of misrepresentation, unconscionability, and, or undue influence. Ms. Naqvi met the onus of establishing that the alleged Settlement Agreement is unenforceable, which means that the money paid into court belongs to her as Estate Trustee.
[8] It was reasonable for Mr. Zaidi to sue to enforce a settlement agreement and I am not persuaded by Ms. Naqvi’s submissions that the appropriate scale of costs is on a substantial indemnity basis. The case at bar does not resemble the cases which involve unsubstantiated allegations of fraud or moral turpitude for which it would be appropriate to levy a higher scale of costs.
[9] The case at bar was ultimately about the enforceability of an agreement. Ms. Naqvi raised but ultimately abandoned a jurisdictional challenge which added some wasted legal expense and making some adjustment for that wasted legal expense, and having regard to the other factors that weigh on the court’s discretion with respect to costs, a fair and reasonable award of costs on a partial indemnity basis is $28,000. This is a fair and reasonable award for costs for the successful party on what was a successful cross-motion for a summary judgment.
[10] Order accordingly.
Perell, J. Released: April 27, 2023
