Court File and Parties

Court File No.: CV-24-00000285-0000 Date: 2024 09 23 Superior Court of Justice - Ontario

Re: Tareq Ibrahim, Applicant And: Koshi Bashi Inc., Sitescape Construction Group Inc., Omar Nafisa, Yahya Alalawi, Adnan Nafisa, Respondents

Before: Stewart J.

Counsel: Matthew Stroh for Applicant (mstoh@stohmercer.com) Adnan Nafisa representing himself, Omar Nafisa and Yahya Alalawi, Respondents (adnannafisa@icloud.com)

Heard: February 22, 2024, by video conference

Costs Endorsement

[1] On May 14, 2024, the court released an endorsement arising from a motion for enforcement of a final order pursuant to the Arbitration Act. The court set a costs schedule. The applicant (the successful party on the motion) made costs submissions. None of the respondents made costs submissions.

Background

[2] The Applicant and two Respondents (Omar Nafisa and Yahya Alalawi) were equal shareholders in the Respondent, Koshi Bashi Inc. There was a unanimous shareholder agreement (USA). The Applicant started an oppression action, which was stayed and the dispute went to arbitration in accordance with the USA terms. All of the Respondents consented to the arbitration. The arbitrator had jurisdiction over all of the Respondents.

[3] The arbitrator made findings and awards in favour of the applicant. The arbitral findings included oppressive conduct by the individual Respondents which was characterized by deceit. Of three monetary decisions made by the arbitrator, the Respondents had not paid two at the time of this motion decision.

[4] As a result of further disputes, the parties returned before the arbitrator and consented to an interim order. The order was never signed because the Respondents failed to pay their arbitration fees.

[5] The Applicant started this application and moved to enforce the arbitration award pursuant to section 50 of the Arbitration Act, 1991, S.O. 1991, c. 17. The court did not grant the Applicant’s requested relief for a worldwide Mareva injunction.

Position of the Parties

[6] The Applicant seeks costs in the amount of $8,061.60 (substantial indemnity) for his costs up to and including the hearing of the motion.

[7] As noted above, none of the Respondents made costs submissions.

Analysis

[8] The hourly rate and hours spent by counsel are reasonable. The disbursements are appropriate.

[9] There were no offers.

[10] The issues were of great importance to the parties, but not overly complex.

[11] The Applicant succeeded on one ground (enforcement of arbitration award) and did not obtain relief on the other ground (worldwide Mareva injunction).

[12] The Applicant submits that the Respondents’ conduct was “reprehensible” and elevated costs are warranted. Elevated costs are warranted in only two circumstances: as a result of operation of offers and where there is sanction—worthy behavior by the losing party: Davies v. Claringdon, 2009 ONCA 722 at paras 29 to 31. The Applicant’s position does not succeed for the following reasons:

a. The Applicant relies on the conduct of the Respondents at the arbitration and the findings of the arbitrator. However, costs for the arbitration have already been ordered. This court is dealing only with the costs of the motion. b. The Respondents did not engage in reprehensible behaviour on this motion. They engaged in no behaviour. They were completely inert. No materials were filed. Only one Respondent attended the motion (Adnan Nafisa). Adnan purported to be acting as agent for the other two individual respondents, Omar and Yahya. Adnan made oral submissions. c. The caselaw cited by the Applicant involves actual behaviour which prolonged the litigation and/or made baseless, outrageous allegations of deceit. That is quite different than the lack of a defence by the Respondents in this case. d. The Respondents are entitled to require that the applicant prove their case. That stance, in and of itself, will not attract elevated costs.

[13] The appropriate scale is partial indemnity. Taking into account all of the circumstances of the case, I find that fair, reasonable and proportionate costs are $4500.

[14] I therefore make the following orders:

a. The Respondents will pay costs in the amount of $4500 to the applicant within 30 days of this endorsement. b. The Respondents are jointly and severally liable for this costs award. c. Counsel for the Applicant will serve this endorsement on all Respondents.

Madam Justice L. B. Stewart

Date: September 23, 2024