Court File and Parties
Court File No.: CV-21-00655418-00CL Date: 2024-05-21 Superior Court of Justice - Ontario
Re: SAKAB SAUDI HOLDING COMPANY, ALPHA STAR AVIATION SERVICES COMPANY, ENMA AL ARED REAL ESTATE INVESTMENT AND DEVELOPMENT COMPANY, KAFA'AT BUSINESS SOLUTIONS COMPANY, SECURITY CONTROL COMPANY, ARMOUR SECURITY INDUSTRIAL MANUFACTURING COMPANY, SAUDI TECHNOLOGY & SECURITY COMPREHENSIVE CONTROL COMPANY, TECHNOLOGY CONTROL COMPANY, and NEW DAWN CONTRACTING COMPANY and SKY PRIME INVESTMENT COMPANY, Plaintiff(s)
And: SAAD KHALID S AL JABRI, DREAMS INTERNATIONAL ADVISORY SERVICES LTD., 1147848 B.C. LTD., NEW EAST (US) INC., NEW EAST 804 805 LLC, NEW EAST BACK BAY LLC, NEW EAST DC LLC, JAALIK CONTRACTING LTD., NADYAH SULAIMAN A AL JABBARI, personally and as litigation guardian for SULAIMAN SAAD KHALID AL JABRI, KHALID SAAD KHALID AL JABRI, MOHAMMED SAAD KH AL JABRI, NAIF SAAD KH AL JABRI, HISSAH SAAD KH AL JABRI, SALEH SAAD KHALID AL JABRI, CANADIAN GROWTH INVESTMENTS LIMITED, GRYPHON SECURE INC., INFOSEC GLOBAL INC., QFIVE GLOBAL INVESTMENT INC., GOLDEN VALLEY MANAGEMENT LTD, NEW SOUTH EAST PTE LTD., TEN LEAVES MANAGEMENT LTD., 2767143 ONTARIO INC., NAGY MOUSTAFA, HSBC TRUSTEE (C.I.) LIMITED, in its capacity as Trustee of the Black Stallion Trust, HSBC PRIVATE BANKING NOMINEE 3 (JERSEY) LIMITED, in its capacity as a Nominee Shareholder of Black Stallion Investments Limited, BLACK STALLION INVESTMENTS LIMITED, NEW EAST FAMILY FOUNDATION, NEW EAST INTERNATIONAL LIMITED, NEW SOUTH EAST ESTABLISHMENT, NCOM INC. and 2701644 ONTARIO INC., Defendant(s)
Before: Cavanagh J.
Counsel: Munaf Mohamed K.C., Jonathan G. Bell, and Ian W. Thompson for the Plaintiffs Patrick Flaherty, Stuart Svonkin, and Jordana Haar, for Saad Al Jabri Jeffrey Larry and Hailey Bruckner for Mohammed Al Jabri
Heard: In Writing
Costs Endorsement
1On March 5, 2024, I released a decision in which I dismissed the plaintiffs’ motion against the defendants Saad Aljabri and Mohammed Aljabri (“Mohammed”) (together, the “responding parties”) where they sought a contempt order declaring that Dr. Aljabri and Mohammed breached the order of Gilmore J. dated January 22, 2021, as extended, (the “Aljabri Mareva Order”).
2In their notice of motion, the plaintiffs also sought related orders including an order that a suitable non-penal sanction be imposed following a further hearing on sanctions if either of the responding parties fails to purge his contempt following a finding of contempt, including:
i. an order precluding Dr. Aljabri from taking any further step in this proceeding until he has complied with the Aljabri Mareva Order;
ii. an order striking the statement of defence of Dr. Aljabri; and
iii. an order granting judgment against Dr. Aljabri in the amount of SAR 13,023,078,917 (USD 3,472,821,045).
iv. An order precluding Mohammed from taking any further step in this proceeding until he has complied with the Aljabri Mareva Order; and
v. an order granting judgment against Mohammed in the amount of SAR 2,041,536,525 (USD 544,409,740).
3The responding parties seek costs of successfully opposing the plaintiffs’ contempt motion. Dr. Aljabri seeks costs on a substantial indemnity scale in the amount of $969,160.55 or, in the alternative, on a partial indemnity scale in the amount of $649,577.63 (both amounts inclusive of HST and disbursements). Mohammed seeks costs on a substantial indemnity scale in the amount of $391,984.85 or, in the alternative, on a partial indemnity scale in the amount of $261,323.24 (both amounts inclusive of HST and disbursements).
Should Dr. Aljabri and Mohammed be denied costs because of their conduct in this litigation?
4The plaintiffs submit that the responding parties should not be awarded costs of the contempt motion because of their conduct in the litigation.
5The plaintiffs submit that Dr. Aljabri and Mohammed used the contempt proceedings to delay the prosecution of the underlying action and cited the motion as an excuse to breach nine other court orders and fail to pay over $950,000 in unpaid costs orders that date back to June 2021. The plaintiffs submit that Dr. Aljabri and Mohammed continue to refuse to answer questions or produce documents. They submit that I should exercise discretion to decline to reward these defendants for their conduct through the granting of a costs award.
6I do not accept this submission. The responding parties successfully opposed the contempt motion which, if it had succeeded, would have had potentially significant consequences for them if their defences were struck out and default judgments were made. As the successful parties, Dr. Aljabri and Mohammed are entitled to costs of the motion.
Should costs of the contempt motion be awarded on a substantial indemnity scale or a partial indemnity scale?
7Dr. Aljabri and Mohammed submit that costs of the contempt motion should be awarded to them on a substantial indemnity scale.
8They submit that (a) the plaintiffs alleged, but failed to prove to the required standard, that Dr. Aljabri engaged in contumelious, dishonest and reprehensible conduct; and (b) in any event, the manner in which the plaintiffs pursued the contempt motion and the purpose underlying it are worthy of sanction because the plaintiffs: (i) moved for an order for contempt without first seeking other less drastic and available remedies for the alleged breach of the Aljabri Mareva Order; and (ii) attempted to use the contempt power to gain a tactical advantage over Dr. Aljabri in their civil action against him.
9The responding parties rely on the principle cited in The Investment Administration Solutions Inc. v. Pro-Financial Asset Management Inc., 2018 ONSC 14, at para. 14, that costs may be awarded on a substantial indemnity scale “where a party pleads but fails to prove that his or her opponent perpetrated a fraud or committed a criminal act or engaged in other dishonest or reprehensible conduct or makes unfounded allegations that impugn the integrity or good reputation of his or her foes”.
10In Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, the Supreme Court of Canada, at para. 27, held that an unsuccessful attempt to prove fraud or dishonesty (in that case, on a balance of probabilities) does not lead inexorably to the conclusion that the successful party should be held liable for costs on an elevated scale, since not all such attempts will be correctly considered to amount to reprehensible, scandalous or outrageous conduct.
11On the contempt motion, the plaintiffs alleged that the responding parties’ admitted use (after service of the Aljabri Mareva Order and at least until the Mohammed Mareva Order) of assets allegedly stolen from the plaintiffs (to pay for living expenses and legal fees), that were purportedly gifted by Dr. Aljabri to Mohammed in 2017 was a breach of the Aljabri Mareva Order. The plaintiffs’ position was based on (i) its submission that the Aljabri Mareva Order, properly interpreted, froze the allegedly stolen assets, whether or not the purported gift was proven to be fictitious and invalid, and (ii) its assertion that, in any event, the purported gift was a fiction and a fraud because of findings that, they submitted, should be made on the evidence of the circumstances of the purported gift and other evidence.
12In the reasons for my decision to dismiss the plaintiffs’ contempt motion, I did not accept the plaintiffs’ submission with respect to the interpretation they advanced of the Aljabri Mareva Order, and I concluded that the plaintiffs had failed to prove beyond a reasonable doubt that the purported gift was fictitious and invalid. In so concluding, I did not find that the plaintiffs, by taking the positions they did, acted in a reprehensible manner. I do not consider that the plaintiffs, by taking the position on the contempt motion that the responding parties intentionally acted in ways that, in fact, were in breach of the Aljabri Mareva Order, engaged in reprehensible, scandalous, or outrageous conduct. I decline to award costs to the responding parties on a substantial indemnity scale on this basis.
13The responding parties submit, in addition, that the plaintiffs engaged in behaviour worthy of sanction through their contempt motion, in two ways.
14First, they submit that the plaintiffs improperly moved for a contempt order without first seeking other less drastic and available remedies for the alleged breach of the Aljabri Mareva Order. In support of this submission, the responding parties cite Carey v. Laiken, 2015 SCC 17 where the Supreme Court of Canada, at para. 36, observed that courts have consistently discouraged routine use of the contempt power to obtain compliance with court orders, and that it is an enforcement power of last rather than first resort.
15I accept this statement of general principle, however, I am unable to conclude in the circumstances of this motion that the plaintiffs’ choice to move for a contempt order to coerce compliance with the Aljabri Mareva Order, relief that is available for non-compliance with a court order, without first seeking to compel compliance through another procedure, qualifies as reprehensible conduct that justifies an award of costs on a substantial indemnity scale.
16Second, the responding parties submit that the plaintiffs pursued a finding of contempt not for a proper purpose, such as to ensure compliance with the Aljabri Mareva Order, but to obtain a tactical advantage over Dr. Aljabri and to impede his ability to defend the claims made against him in the action.
17In support of this submission, the responding parties cite Bywater v. Toronto Transit Commission, 1999 CarswellOnt 5272. In Bywater, the defendant was unsuccessful on its contempt motion which included an allegation of contempt against class counsel, an officer of the court. The motion judge considered that the contempt motion was a considered and deliberate move by the defendant to “raise the stakes”. The motion judge noted that the defendant had attached the label “criminal” to its contempt allegation. The motion judge noted that where serious allegations of wrongdoing are brought and found to be without substance, elevated costs may be awarded. The motion judge exercised his discretion to award elevated costs.
18On this motion, there was no finding that the plaintiffs had made allegations that were without substance. There was a finding that the evidence in relation to the “gift” of assets was sufficient to give rise to a reasonable inference that Dr. Aljabri retained control over the purportedly gifted assets, such that they were frozen under the Aljabri Mareva Order. I also found that the evidence was sufficient to raise a reasonable doubt as to whether Dr. Aljabri had an interest in or control of the purportedly gifted assets when the Aljabri Mareva Order was made. I do not accept that by bringing a motion for contempt, the plaintiffs acted deliberately to “raise the stakes” in this litigation for an improper purpose.
19Costs should be awarded on a partial indemnity scale.
Costs of the preliminary motions
20On November 19, 2021, I released my decision on eight preliminary motions brought in respect of this litigation. Dr. Aljabri brought three motions. Mohammed brought three motions for the same or similar relief. Mohammed brought a separate motion for separate relief. The plaintiffs brought one motion against both Dr. Aljabri and Mohammed. Each order provides that costs of the motion shall be determined by the judge who hears the contempt motion once that motion has been determined.
21The responding parties submit that there should be no costs of the preliminary motions heard on October 21 and 22, 2021 on the basis that success was divided on these motions.
22The plaintiffs submit that, in any event, they had substantial success on the preliminary motions and the net amount of costs of these motions (to be fixed for each motion) should be awarded to them. The plaintiffs submit that this amount roughly balances with the proper amount of partial indemnity costs to which Dr. Aljabri and Mohammed would be entitled for the contempt motion (if their conduct does not disentitle them to costs), such that there should be no order as to costs of the contempt motion.
23The responding parties do not seek to recover costs related to these preliminary motions, and their claims for costs do not include time spent on those motions. In the costs outlines of the responding parties, counsel certified that the hours claimed have been spent. I accept that the responding parties have not shifted time spent on these motions to the contempt hearing itself, as contended by the plaintiffs.
24I do not agree that that costs of these preliminary motions should be determined on the basis that they be bundled together as if there was one motion, on which there was divided success. Although the motions were heard together over two days, they involved different issues, and they were briefed separately. Dr. Aljabri and Mohammed filed nine factums and the plaintiffs filed five factums.
25The Divisional Court allowed the plaintiffs’ cross-appeal in part and set aside rulings regarding the plaintiffs’ production motion and the admissibility of answers provided by Dr. Aljabri and Mohammed pursuant to their discovery obligations and examinations under the Mareva orders.
26I accept the plaintiffs’ submission that costs of each motion should be determined separately.
27Dr Aljabri and Mohammed chose not to provide costs outlines for the preliminary motions. The plaintiffs, based on their costs outlines, would have asked for approximately $320,000 in partial indemnity costs for the preliminary motions in the aggregate (approximately $75,000 for each of the rule 21 motion, the Stinchcombe motion, the motions to strike, and the plaintiffs’ refusals and production motion, and $20,000 for Mohammed’s stay motion). In the absence of costs outlines from the responding parties, I accept the amounts claimed as reasonable, and I do not allow more than the amount incurred by the plaintiffs for the motion where the responding parties succeeded.
28On this basis, I fix the costs of the preliminary motions as follows:
a. Dr. Aljabri was successful on his rule 21 motion (to preclude the plaintiffs from relying in the contempt motion on prior rulings made in the action). I fix costs of this motion on a partial indemnity scale in the amount of $75,000 to be paid by the plaintiffs to Dr. Aljabri.
b. Dr. Aljabri’s and Mohammed’s motion to strike parts of the record was unsuccessful. I fix costs of this motion on a partial indemnity scale to be paid by Dr. Aljabri and Mohammed, jointly and severally, in the amount of $75,000.
c. The responding parties submit that success was divided on Dr. Aljabri’s Stinchcombe motion (because the plaintiffs were directed to identify information in the motion record responsive to Dr. Aljabri’s requests and to produce documents obtained pursuant to a Norwich order). Although Dr. Aljabri and Mohammed received a direction they requested, the plaintiffs were successful on the main issues raised on this motion. I accept the plaintiffs’ submission concerning the costs of this motion, and fix costs of this motion on a partial indemnity scale to be paid by Dr. Aljabri and Mohammed, jointly and severally, to the plaintiffs in the amount of $50,000.
d. On the plaintiffs’ production motion, I concluded that Dr. Aljabri must answer the undertakings forthwith, provided that the information provided is inadmissible on the contempt motion. I held that the hearing of the motion to compel production of information from trust ledgers should be adjourned and heard on a full record after the contempt motion has been heard and decided. On appeal, the Divisional Court held that I erred, in part, in this ruling and should not have deferred the production motion and should have deferred any question of admissibility of compelled documents until those documents were sought to be tendered in evidence on the contempt motion. Given the decision of the Divisional Court, the plaintiffs were substantially, although not entirely, successful on this motion. I fix costs to be paid by Dr. Aljabri and Mohammed, jointly and severally, to the plaintiffs on a partial indemnity scale in the amount of $50,000.
e. Mohammed was unsuccessful on his stay motion. I fix costs to be paid by Mohammed to the plaintiffs on a partial indemnity scale in the amount claimed by the plaintiffs, $20,000.
Amount to be fixed for Dr. Aljabri’s costs of the contempt motion
29Dr Aljabri seeks costs of the contempt motion on a partial indemnity scale in the amount of $649,577.63 comprised of fees (including HST) of $639,165.86 and disbursements of $10,411.77.
30The hours for which fees are claimed were expended by senior counsel (a 1993 call), second counsel (a 1999 call in Massachusetts and a 2003 call in Ontario), third counsel (a 2019 call), fourth counsel (a 2022 call), a law clerk and a student-at-law. The partial indemnity fees are calculated based on 60% of actual hourly rates charged to the client.
31In his Costs Outline, Dr. Aljabri breaks down the fees claimed into several categories including various case conferences, cross-examinations of a witnesses (63 hours of lawyer time claimed), various motions, a mediation, the contempt motion hearing, and preparation of costs submissions and the Costs Outline.
32The largest single amount is the claim for costs for preparation for and attendance at the contempt motion hearing on October 17, 18, 19, and 20, 2023. The hours claimed are 179 for senior counsel, 421.2 for second counsel, 195.9 for third counsel, 232.6 for fourth counsel, 22.9 for the law clerk, and 38.4 for the student-at-law. The Costs Outline describes the activities as including reviewing and analysing the plaintiffs’ various motion records; legal research and preparing legal memoranda; reviewing transcripts of examinations; preparing Dr. Aljabri’s answers to undertakings; reviewing other parties’ answers to undertakings; correspondence and telephone calls regarding testimony of non-party witnesses; preparing and filing Responding Motion Record, Affidavits of William Rennie, Mohammed Fadel, and Celesse Dove; preparing written opening statement, written closing submissions, compendium for oral argument, book of authorities, and evidentiary objections; and all correspondence and telephone calls with the Court and counsel regarding same.
33The responding parties submit that the amounts claimed are reasonable having regard to the factors in rule 57.01 of the Rules of Civil Procedure and the nature, scope and volume of work required for them to defend themselves, given what was at stake. They submit that they efficiently coordinated the allocation of work between themselves with the result that Mohammed’s costs are materially lower than Dr. Aljabri’s costs.
34The plaintiffs submit that their own successes on important aspects of the contempt proceedings must be factored into the ultimate costs award. The plaintiffs append to their written submissions an analysis of the time claimed by the responding parties for different activities in relation to the contempt motion and their submission as to the amount of credit to be given to the responding parties or to plaintiffs for the activities described (based on 60% of actual fees incurred).
35The plaintiffs submit that the responding parties should not be credited with costs for case conferences on August 19, 2021, September 10, 2021, December 3, 2021, February 9, 2022, March 2, 2022, May 26, 2023, July 10, 2023, September 12, 2023, or September 26, 2023. The plaintiffs submit that the responding parties’ should not be credited with costs of the mediation which did not only involve the contempt motion, but also a motion to be brought by Dr. Aljabri and Mohammed to set aside the Mareva orders. The plaintiffs submit that the responding parties’ claims for costs for the cross-examination of Mr. Alnowaiser should be reduced to $15,000 for both responding parties together (from $26,307 and $8,167.50 for Dr. Aljabri and Mohammed, respectively). The plaintiffs submit that the claim for costs of preparing costs submissions should be denied because such costs are not provided for by the applicable tariff. The tariff allows for costs for a procedure authorized by the Rules of Civil Procedure. I exercise discretion to allow costs for this item.
36The plaintiffs ask to be credited with costs of $4,000 for the March 2, 2022 case conference and $20,000 for the September 26, 2023 case conference (which involved evidentiary objections). The plaintiffs submit that the responding parties costs for preparation for and attendance at the hearing of the contempt motion should be reduced to $145,000 for both responding parties, together. The plaintiffs ask to be credited with $5,500 as the counsel fee for the first ½ day of the hearing because they were substantially successful on their evidentiary objections.
37The plaintiffs submit that after the costs of the preliminary motions are taken into account, they should be given additional fee credit for certain activities in relation to the contempt motion proceedings in the amount of $29,500. The plaintiffs submit that after the costs of the preliminary motions are taken into account, the responding parties should be given additional credit for fees of the contempt motion proceedings in the amount of $160,000.
38When the costs of the preliminary motions are taken into account, the plaintiffs submit that the responding parties are entitled to a credit for partial indemnity fees of $235,000 and the plaintiffs are entitled to a credit for partial indemnity fees of $249,500. The plaintiffs submit that the fair and reasonable outcome for the contempt motion as a whole is that the parties bear their own costs.
39In response to these submissions, the responding parties submit that the plaintiffs are seeking a distributive costs award because they ask me to fix costs for individual aspects of the motion in favour of the plaintiffs or the defendants, or disallow costs for such individual aspects, and then take a sum of the credits allowed to the responding parties and the plaintiffs and net the sums against each other to arrive at the amount to be fixed. The responding parties submit that such an approach is inappropriate.
40In support of this submission, the responding parties rely on Murphy v. Alexander. In Murphy, Cronk J.A., at para. 72, described a distributive costs order as involving an approach where major issues are identified and the party who is successful on each issue is awarded costs for the time and expense attributable to that issue. Cronk J.A. observed that the Court of Appeal has generally rejected the appropriateness of distributive costs orders. Cronk J.A. did not foreclose the possibility of a distributive costs order in an appropriate case, but held that such an order will be appropriate only in rare circumstances. In Eastern Power Limited v. Ontario Electricity Financial Corporation, 2012 ONCA 366, the Court of Appeal observed, at para. 18, that “[t]his court has restricted the use of distributive costs awards to the rarest of cases and has noted that ‘[i]ndividual issues can be dealt with more appropriately under the general discretion and explicit guidance set forth in rule 57.01(1)’”. The Court noted, at para.19, that the general principles that govern costs decisions require the court to consider the peculiar features of a given case.
41I decline to make a distributive costs order by which I make a finding of success or failure of the parties for different activities in relation the contempt motion, such as case conferences, the mediation, evidentiary objections, and the hearing itself, and allocate a separate credit to a party for success or failure or partial success or failure in relation to each such activity. I accept the guidance of the Court of Appeal and consider these activities under the general discretion and guidance set forth in rule 57.01(1) of the Rules of Civil Procedure.
42With respect to the factors in rule 57.01(a) and (d) of the Rules of Civil Procedure, I accept the responding parties’ submission that the consequences to the responding parties of failure on the contempt motion were serious. Although the plaintiffs did not seek penal consequences, if findings of contempt were made, the plaintiffs sought a suitable, non-penal, sanction order to be made following a hearing on sanctions if the responding parties failed to purge their contempt, including that the statements of defence of the responding parties be struck out and that default judgment be granted against Dr. Aljabri and against Mohammed in the amounts of USD $3,472,821,045 and USD $544,409,740, respectively. Nevertheless, based on the relief sought in the plaintiffs’ Amended Notice of Motion, if a contempt order were to be made, the responding parties could avoid sanctions by purging their contempt by bringing an application for leave to use frozen funds to pay for living expenses and legal expenses.
43With respect to the factor in rule 57.01(c), the issues raised in the contempt motion were relatively complex. The plaintiffs’ motion record included approximately 3,800 pages. The parties filed lengthy written submissions with citations to many authorities.
44I do not agree with Dr. Aljabri’s submission that the amount of costs to be awarded should be affected because plaintiffs brought a motion for contempt before seeking alternative remedies and thereby unnecessarily and improperly lengthened the contempt motion.
45In Boucher v. Public Accountants Council for the Province of Ontario, 2004 CarswellOnt 2521 (C.A.) the Court of Appeal, at para. 25, acknowledged that the total amount to be awarded in a proceeding of some complexity cannot reasonably be determined without some critical examination of the parts which comprise the proceeding. The Court of Appeal, at para. 26, held that the fixing of costs is not a mechanical exercise and does not begin and end with a calculation of hours times rates. Overall, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful party.
46Although the contempt motion presented potentially serious non-penal consequences for Dr. Aljabri and Mohammed, the evidentiary record was voluminous, and the issues were relatively complex, I regard the amount claimed by Dr. Aljabri for fees of the motion to exceed the amount of fees that would be reasonable and proportionate in the circumstances and which the plaintiffs would reasonably expect to pay if they were to be unsuccessful on the motion.
47In fixing an amount for fees that is reasonable and proportionate, I take into account that the mediation involved more than just the contempt motion, the responding parties were unsuccessful on a number of evidentiary rulings, some case conferences involved issues other than the contempt motion, the discovery plan motion involved issues other than the contempt motion, and my view that the amount of time claimed for the cross-examination of Mr. Alnowaiser was more than would be reasonable and proportionate for the plaintiffs to pay. I also find that a downward adjustment is justified for the amount claimed by Dr. Aljabri for fees for preparation for and attendance at the hearing of the contempt motion. I do not question that the time claimed was spent, but the number of hours, based on the descriptions of activities in Dr. Aljabri’s Costs Outline is, in my view, more than is reasonable and proportionate for these activities.
48When I consider the factors in rule 57.01 of the Rules of Civil Procedure and the principles in Boucher, I conclude that the partial indemnity fees allowed for Dr. Aljabri should be reduced from $565,633.50, as claimed, to $400,000 (excluding HST).
Amount to be fixed for Mohammed’s costs on a partial indemnity scale
49Mohammed seeks costs on a partial indemnity scale based on fees, excluding HST, of $231,259.50 (based on rates equal to 60% of actual hourly rates charged to the client).
50In his Costs Outline, Mohammed breaks down the fees claimed into several fee items. The hours were spent by two lead counsel (a 1981 call and a 1985 call), second counsel (a 2014 call), third counsel (a 2019 call), fourth counsel (a 2021 call), and fifth counsel (a 2022 call). The largest single fee item is for preparation for and attendance at the hearing of the contempt motion on October 17, 18, 19 and 20, 2023. Lead counsel spent, together, 90.3 hours. Second counsel spent 183.5 hours. Third, fourth, and fifth counsel spent, together, 125.6 hours.
51Mohammed submits that the hours expended by his counsel as set out in his Costs Outline were reasonable in the circumstances. He submits that the defendants took care not to perform duplicative work or file redundant materials with the Court.
52The plaintiffs submit that the number of hours spent by counsel for Mohammed is unreasonable and duplicative. They rely on their analysis at Schedule “A” of their written submissions that I have summarized above.
53Mohammed was separately represented, and his counsel were entitled to spend a reasonable amount of time to represent his interests in response to the contempt motion. Although I accept that reasonable efforts were made to avoid duplication of work as between Dr. Aljabri and Mohammed, the fact that the issues each confronted overlapped significantly likely led to some time spent by counsel that addressed similar arguments to those made on behalf of Dr. Aljabri. In the context of this motion, this is not unexpected. I do not reduce the fees claimed by Mohammed because of unreasonable duplication of time spent by his counsel having regard to time spent by Dr. Aljabri’s counsel.
54In fixing the amount of partial indemnity fees to be paid to Mohammed for the contempt motion, I take into consideration that the mediation did not just involve the contempt motion, that Mohammed was unsuccessful on a number of evidentiary rulings, and some case conferences and motions involved issues other than the contempt motion. I also consider the amount that, overall, would be reasonable and proportionate for the plaintiffs to pay.
55When I consider the factors in rule 57 and the principles in Boucher, I conclude that the fees claimed by Mohammed on a partial indemnity scale should be reduced to $200,000 (excluding HST).
Disposition
56I fix costs of the preliminary motions as set out in paragraph 28 above.
57I fix costs of the contempt motion on a partial indemnity scale to be paid by the plaintiffs to Dr. Aljabri in the amount of $462,411.77 comprised of fees of $400,000, HST on fees of $52,000, and disbursements (including HST) of $10,411.77.
58I fix costs of the contempt motion on a partial indemnity scale to be paid by the plaintiffs to Mohammed in the amount of $226,000 comprised of fees of $200,000 and HST on fees of $26,000.
59These costs are to be paid within 30 days.
60I ask that counsel confer about how costs are to be paid, including whether they should be set off against other amounts for costs owing by the responding parties. If counsel cannot agree, a case conference with me may be arranged.
Cavanagh J.
Date: May 21, 2024