Court File and Parties

COURT FILE NO.: CV-19-00617948-0000 DATE: 20230927 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MD ZAKIR HOSSAIN, Plaintiff (Defendant by Counterclaim) AND: MOHAMMED ZAHIDUR RAHIM, Defendant (Plaintiff by Counterclaim)

BEFORE: Cavanagh J.

COUNSEL: Alamgir Hussain, for the Plaintiff (Defendant by Counterclaim) Peter Woloshyn, for the Defendant (Plaintiff by Counterclaim)

IN WRITING

Costs Endorsement

[1] On August 31, 2023 I released an endorsement following a trial of the plaintiff’s claim and the defendant’s counterclaim. I allowed the plaintiff’s claim, in part, and dismissed the defendant’s counterclaim.

[2] This is my endorsement with respect to costs.

[3] The plaintiff seeks costs of the action and counterclaim. He has submitted a Costs Outline showing fees at his counsel’s actual rate of $114,000. The plaintiff claims disbursements in the amount of $4,884.32.

[4] The plaintiff claimed payment of $100,000 as a debt owed by the defendant. The plaintiff also claimed an unspecified amount of general damages for business loss, mental distress, damage to his reputation, damage for psychological trauma and related claims. These were abandoned at the beginning of the trial.

[5] The plaintiff was successful on his claim for payment of $100,000 and in defending the counterclaim. He is entitled to an award of costs.

[6] Although the plaintiff made submissions criticizing the defendant’s conduct in relation to these proceedings, the defendant has not engaged in conduct that justifies an award of elevated costs. Costs should be awarded on a partial indemnity scale.

[7] In the action, the plaintiff claimed payment of a debt in the amount of $100,000. The defendants defended the claim on the basis that there were unsatisfied conditions to payment of the amount advanced and on the defence of setoff. The defendants, in his counterclaim, sought damages in the amount of $2 million based on alleged breaches of a partnership agreement.

[8] I have reviewed the plaintiff’s Costs Outline. The defendant provided a Costs Outline showing that if he had been the successful party, he would have sought fees on a partial indemnity scale of $42,488.

[9] I have considered the factors in rule 57.01 of the Rules of Civil Procedure.

[10] The factual issues were of moderate complexity and the trial was conducted over four days. Although the claim at trial was for $100,000, the plaintiff was defending a substantial counterclaim. The issues were important to the parties.

[11] Until the beginning of the trial, the plaintiff was maintaining a claim for general damages in an unascertained amount. The steps taken before trial, including examinations for discovery, involved these claims. The fact that these claims were not abandoned until the beginning of trial resulted in unnecessary expenditures of time to address these claims. This is a proper factor to be considered in relation to the plaintiff’s claim for costs. I reduce the plaintiff’s claim for fees on a partial indemnity scale by $10,000 to account for time unnecessarily spent in relation to his abandoned claims for general damages.

[12] I am satisfied that the fees claimed, after this reduction, are reasonable and fall within a range of fees that the defendant would reasonably have expected to pay if he were to be unsuccessful at trial.

[13] I fix costs on a partial indemnity scale in the amount of $70,876.32 comprised of fees of $58,400, HST on fees of $7,592, and disbursements of $4,884.32. The defendant shall pay costs in this amount to the plaintiff forthwith.

Cavanagh J. Date: September 27, 2023