Court File and Parties
Court File No.: CV-13-473196 Date: 2024-05-28 Ontario Superior Court of Justice
Between: MEHRAN MOHAGHEGH DOLATABADI, personally, MEHRAN MOHAGHEGH DOLATABADI, ESTATE TRUSTEE FOR THE ESTATE OF JILA KHOSRAVI OSKOUEI, and 1823662 ONTARIO INC. Plaintiffs – and – TOP/STAR EXECUTIVES REALTY INC., LABEED & ABEYAN INC., DAVID MCAULAY, SURAJ KASHYAP, also known as SUNNY KASHYAP, MOHAMMAD S. ISLAM and NARQIS ISLAM Defendants
Counsel: David A. Brooker, for the Plaintiffs No one appearing for the Defendants
Read: May 28, 2024 Before: Papageorgiou J.
Overview
[1] On May 13, 2024, I granted default judgment to the plaintiffs as against the defendants Mohammad S. Islam, Narqis Islam and Labeed & Abeyan Inc. in the amount of $448,474 plus costs in the amount of $45,000 on a partial indemnity basis inclusive of HST.
[2] I requested submissions on pre and post judgment interest.
[3] I reject the plaintiff’s request for prejudgment interest at the Courts of Justice Act rate from 2011 until the date of Judgment for the following reasons:
Subsection 130(1) of the Courts of Justice Act permits the Court to award interest as it considers just. Interest is typically ordered from the time when the cause of action arose to the date of the Order. In cases of fraudulent misrepresentation that induces a contract, the wrong occurs on the date the contract was entered into which in this case was March 8, 2011: Mazgaj v. Profitable Plots (Canada) 2015 ONSC 7139 at para 54.
However, the court may disallow interest as it considers just or may award it for a different time period. The court shall take into account the circumstances, the amount of recovery and the conduct of any party that tended to lengthen unnecessarily the duration of the proceeding. An award of prejudgment interest is to compensate the plaintiff for the loss of the use of the money and is not based upon any misconduct by the defendant: Blundon v. Ashton Pools, 2016 ONSC 4062 (CA) at para 5.
The Defendants against whom judgment was obtained have never defended this claim and were noted in default in 2013.
There were other defendants, the agents who acted for the Deceased, but the actions against them have been settled.
While there is a list of factors set out in the materials as to why this matter took so long, which included delay in obtaining financial statements and tax returns for the corporation plaintiff and amendments to the Statement of Claim, and some court delays, this does not explain why the plaintiff did not immediately move for default judgment when the Defendants were noted in default or at least soon thereafter.
[4] In all the circumstances, it would be unfair to apply interest to a period that reflects the plaintiffs’ own significant delay. Thus, in the exercise of my discretion, it is fair and just to award the plaintiffs interest from the date of the date of contract March 8, 2011, until the end of 2014 at the rate claimed for that time period which was 1.3 %. In my view, the plaintiffs should have been able to bring default proceedings by the end of 2014 at the latest.
[5] There are 1,393 days during this period. The daily interest rate is $15.97. Therefore, the total interest is $22,246.21. Post judgment interest at the Courts of Justice Act rate shall run from the date of the Judgment.
Papageorgiou J. Released: May 28, 2024
Reasons for Judgment
Ontario Superior Court of Justice
Between: MEHRAN MOHAGHEGH DOLATABADI, personally, MEHRAN MOHAGHEGH DOLATABADI, ESTATE TRUSTEE FOR THE ESTATE OF JILA KHOSRAVI OSKOUEI, and 1823662 ONTARIO INC. Plaintiffs – and – TOP/STAR EXECUTIVES REALTY INC., LABEED & ABEYAN INC., DAVID MCAULAY, SURAJ KASHYAP, also known as SUNNY KASHYAP, MOHAMMAD S. ISLAM and NARQIS ISLAM Defendants
Papageorgiou J. Released: May 28, 2024