Ontario Superior Court of Justice

Court File No.: CV-19-71409
Date: 2025/03/10

Parties

Between:
Jakir Ahmed, Sabir Ahmed, Abdullah Al Mamun, Samun Ahmed and Masumur Rahman
Applicants
(Roy Wise for the Applicants and for the Respondent, Zinnatus Salam)

- and -
Quddus Abdul, Zinnatus Salam, Abida S Quddus, Surma United Inc., represented by its President, Quddus Abdul, and Canadian Imperial Bank of Commerce
Respondents
(Douglas F. Best for the Respondent, Canadian Imperial Bank of Commerce; Michael Stanton for the Respondents, Quddus Abdul, Abida A. Quddus and Surma United Inc., represented by its President, Quddus Abdul)

Heard: In Writing

Costs Decision

Justice L. Sheard

Introduction

1This matter came before me on December 2, 2024, as a long Motion/Application. The relief sought was:

(i) to amend the Notice of Application;
(ii) to amend the title of proceedings to remove Zinnatus Salaam as a respondent and add her as an applicant;
(iii) after the Notice of Application was amended, to convert the amended Application to an action, which would be governed by a proposed statement claim attached as Exhibit “B” to the affidavit of Teresa Pasquini, filed by the applicants;
(iv) an interim preservation order restraining the respondents from alienating or encumbering 140 Brantdale Avenue, Hamilton, ON (the “Property”); and
(v) costs.

2A search of Case Center disclosed that the Applicants/Moving Parties (the “Ahmed Plaintiffs”) had not uploaded a Confirmation of Motion.

3The respondent, Canadian Imperial Bank of Commerce (the “CIBC”), also did not file a Confirmation of Motion for the December 2, 2024 hearing but did upload materials to the “December 2, 2024, Motion Bundle” in Case Centre. The materials consisted of a factum and a compendium. In its factum, the CIBC noted that the Ahmed Plaintiffs sought to convert the Application to an action, which was unopposed by the CIBC except that CIBC opposed the inclusion of any new causes of action and heads of relief in the statement of claim, which, it asserted, were barred by the Limitations Act, 2002, SO 2002, c 24, Sch B.

4The CIBC also sought its costs thrown away on the “abandoned” Application.

5The other respondents (the “Quddus Respondents”) filed a Confirmation of Motion.

6Based on the Confirmation of Motion filed by the Quddus Respondents, I understood the following issues were to be determined at the December 2, 2024 hearing:

1. Should the Application be converted to an action? (This relief was unopposed.)
2. Once converted to an action, should the respondent, Zinnatus Salam, be permitted to be included as a plaintiff? Should the claims set out in the Ahmed Plaintiffs’ proposed statement of claim be permitted, or were some of them statute-barred?
3. Are the respondents entitled to costs thrown away of the Application? If so, in what amount?
4. Should the court issue an interim order enjoining the respondents from alienating or encumbering the Property?

Hearing on December 2, 2024

7This matter came before me on December 2, 2024. I released my decision on December 17, 2024 (the “Reasons”). As noted at para. 3 of the Reasons, the parties had agreed that the Application should be converted to an action and the primary objective of the hearing before me was to determine what claims would be permitted in the new statement of claim.

8As noted at paragraphs 8 and 9 of the Reasons, reproduced below, at the hearing, I made it clear to the Ahmed Plaintiffs that I was not prepared to firstly, decide on proposed amendments to the Application, and thereafter to determine what parts of the amended Application could and should properly be included in the statement of claim to be used in the now-converted Application.

9Paragraphs 8 and 9 of the Reasons read as follows:

[9] In the initial submissions, it became clear that the proposed statement of claim was not intended to mirror the proposed amendments to the notice of application: the real issue was not whether the application should be converted to an action, with which all parties agreed, but what claims ought to be included in the proposed statement of claim.

[10] Given that the objective was to determine what claims would be permitted to be made in the proposed statement of claim, the two-step procedure proposed by the applicants appeared unnecessary and I directed the parties to focus their submissions on the end goal: the statement of claim.

10The Reasons identify the relief claimed and my decisions on each item.

11The Reasons (at para. 41) also note that the Ahmed Plaintiffs had mixed success on the motion: their request to add claims for misappropriation and tracing was granted but their request to include a claim for punitive and exemplary damages was not; their request to add Ms. Salam as a plaintiff was denied and, therefore, the paragraphs relating to her claim were also denied; and, their request to include certain claims against the CIBC was also denied.

12The parties were invited to try to agree on costs, failing which, they would be entitled to make written costs submissions. The parties were unable to agree and, having received their costs submissions, my decision respecting costs is set out below.

Scope of this Costs Decision

13In the Costs Submissions filed by the Quddus Respondents and by the CIBC, this court was asked to fix the costs of the Application (as a whole).

14I am not prepared to do so.

15In my view, it is premature for those costs to be determined at this time. The Application was not determined or adjudicated upon; it was simply converted into an action. In my view, the determination of the quantum and liability for costs should await a final resolution of the dispute between these parties.

16For clarity, unless stated otherwise, this Costs Decision should not be viewed as a determination of any party’s entitlement to costs of the Application/Action. The judge determining the dispute between the parties will be in the best position to apply the various factors set out under Rule 57 of the Rules of Civil Procedure, RRO 1990, Reg 194, which must be considered when fixing costs.

17In short, this Costs Decision is limited to fixing and awarding the costs associated with the motion that I heard and decided, which, in essence, was a pleadings motion.

(a) Position of the Ahmed Plaintiffs

18The Ahmed Plaintiffs’ submissions are set out in a letter from their counsel, Roy Wise, dated January 9, 2025, which I summarize as follows:

a. while the respondents agreed to convert the Application to an action, they did not agree to do so immediately and their refusal to consent to that relief “delayed and proliferated expense”;

b. Ms. Salam was required to issue a separate action because the respondents refused to accept the Notice of Discontinuance of the Application as against her, dated March 4, 2022, or to consent to Ms. Salam being added as an applicant. Ms. Salam was left with no alternative but to commence a separate application or risk facing a limitation-period defence to her claims;

c. (As explained in the Reasons) Ms. Salam’s request was denied, and she must now be put to the expense of bringing a separate motion for an order allowing her to have her action heard with this action. As a result, no costs should be awarded against her or the Ahmed Plaintiffs related to their lack of success on that ground of relief;

d. Although in the Reasons, the Ahmed Plaintiffs were unsuccessful in obtaining an order for a Certificate of Pending Litigation, or for an alternate interim order enjoining the Quddus Respondents from alienating the Property, pending further court order, that relief was made necessary because the Quddus Respondents went “behind their lawyers’ backs and sold the Property without making their intention to do so clear”;

e. As the Ahmed Plaintiffs were successful in obtaining an order allowing the proposed statement of claim to include claims for misappropriation of funds, and a tracing order, notwithstanding that their request to include claims for punitive and exemplary damages in the proposed statement of claim was denied, the Ahmed Plaintiffs should still be awarded their costs of the day, fixed at $3,500, to be paid by the Quddus Respondents;

f. Although the Ahmed Plaintiffs were unsuccessful in their request that the proposed statement of claim include claims against CIBC’s counsel, no costs should be awarded against them, because that CIBC (allegedly) failed to take any steps to address the alleged fraud of the Quddus Respondents with respect to the CIBC mortgage. Alternatively, costs should be awarded to the CIBC for the hearing in the amount of $3,500; and

g. With respect to the costs of prior court attendances and meetings, all costs should be deferred to the court ultimately disposing of the issues.

19With respect to para. 18 g., above, I agree.

(b) Position of the Quddus Respondents

20The Quddus Respondents’ Costs Outline lists total fees, disbursements and HST of $88,290.34. That figure includes all the time spent and disbursements incurred on the Application/Motion, dating back to 2020.

21The Quddus Respondents seek their costs of the Motion and their costs thrown away on the Application on a substantial indemnity basis to December 2, 2024, fixed in the amount of $66,281.59, inclusive of HST and disbursements.

22The Quddus Respondents’ Costs submissions include a chart summarizing the relief granted, and denied, as set out in the Reasons.

23Their submissions begin with an assertion that there has been “inexplicable delay” in bringing the motion to convert the Application to an action, which resulted in substantial costs to the parties.

24The Quddus Respondents also submit that they have incurred significant costs thrown away on the Application, which was commenced on December 2, 2019. Those costs include teleconferences and zoom meetings, multiple court appearances, which were ultimately adjourned, cross examinations, and the preparation of a comprehensive, responding application record and two facta.

25While the Costs Outline and Bill of Costs provide details of the time spent, for reasons explained above, I am prepared to fix only the costs of the matter that was before me, namely:

1. upon the Application being converted (on consent) to an action, what claims were permitted to be included in the statement of claim; and
2. should a Certificate of Pending Litigation (“CPL”) be issued in respect of the Property.

(c) The CPL or Interim Injunction

26As should be clear from the Reasons, I did not address, nor did I hear submissions on the Ahmed Plaintiffs’ request for an interim order enjoining the Quddus Respondents from alienating or encumbering the Property. However, I did hear submissions on the request for a CPL. As explained in the Reasons, the CPL was not granted because: 1) the statement of claim had not yet been issued; and 2) the Ahmed Plaintiffs had not put forth the requisite undertaking respecting damages.

27The Reasons were also clear that notwithstanding the dismissal of the request for a CPL, the Ahmed Plaintiffs were entitled to proceed with the statement of claim as approved by the court, which included a claim for a CPL. With the Reasons in hand, the Ahmed Plaintiffs were then in a position to again move for a CPL, upon a proper record, which, if granted, would have prevented or, at least, fettered the ability of the Quddus Respondents to deal with the Property.

28Therefore, while the Ahmed Plaintiffs’ motion for a CPL was dismissed, that dismissal was without prejudice to their right to again seek a CPL on proper record. As such, that dismissal should not be seen as a loss or a victory for either side.

(d) Position of the CIBC

29In its Costs submissions, the CIBC also asked for its costs of the entire Application fixed either on a substantial indemnity basis in the amount of $58,773.97, inclusive of HST and disbursements, or, alternatively, on a partial indemnity basis in the amount of $47,774.61, inclusive.

30Similar to the arguments made by the Quddus Respondents, the CIBC submits that it is entitled to its costs thrown away with respect to the Application, as well as its costs for the motion.

31The CIBC submits that consideration should be given to the fact that the Ahmed Plaintiffs’ Costs Outline only calculates the legal fees incurred for the attendance on December 2, 2024 – in the amount of $3,955 on a partial indemnity basis, and does not provide an accounting of the other legal fees incurred by the Ahmed Plaintiffs, which should have included time spent and fees rendered by their prior counsel.

32I accept that submission: the Ahmed Plaintiffs’ Costs Outline lacks details that a court should expect to receive, and, particularly so, if the court were determining the costs of the entire Application.

33The CIBC also submits that the Ahmed Plaintiffs’ Costs Outline does not include time for earlier versions of the Motion Record that pre-date June 29, 2023, facta delivered in 2022 and early 2023, or for the numerous drafts of the proposed statement of claim that were delivered to and reviewed by CIBC’s counsel from October 6, 2022 onward.

34Similar to the manner in which the court was informed of the costs incurred by the Quddus Respondents, the CIBC attached a statement of fees incurred (Schedule “A”), dating from 2020 for the entire Application and Motion.

Analysis and Disposition

35For reasons already explained, I am prepared to fix only the costs of the Motion before me.

Costs of the CIBC

36As to the CIBC’s costs, I am not prepared to award the costs relating to the Application as a whole, nor am I prepared to pour over the Schedule “A” to the CIBC’s Costs Outline to try to identify the fees that may - or may not - be related to hearing before me.

37Instead, I have used a broad-brush approach and have considered only the time outlined at page 4 of 4 of Schedule “A”, set out under the following headings, as calculated on a partial indemnity basis:

1. CIBC’s Materials: Includes prep of Factum, Compendium and time incurred to prep for April attendance, in the amount of $5,483.66, calculated on a partial indemnity basis; and
2. HEARING: Including preparation for and attendance at full day hearing held December 2, 2024 before the Honourable Justice Sheard and to receipt and review of Reasons for Decision, in the total amount of $3,517.74, calculated on a partial indemnity scale; and
3. COSTS SUBMISSIONS: Receipt and review of Costs Submissions of the Applicants and Co-Defendants; preparation of costs submissions and Bill of costs of CIBC. Rate reflects reduced rate provided to client as a professional courtesy. In the total amount of $1,105.65 on a partial indemnity basis.

38I calculate the CIBC’s fees with respect to the motion before me at $10,107.05. HST on those fees is $1,313.92 for a total of $11,420.97. Although the disbursements are relatively modest at $110.74, I do not include them in the costs I am determining, as they relate to Land Registry Office searches and other searches that were conducted in 2020.

39Again, for the reasons already explained, this Costs Decision is not intended to preclude the CIBC (or any other party) from seeking its costs for fees, disbursements, and taxes incurred prior to 2024 except that, with respect to the fees listed under “CIBC’s Materials”, which include time spent by Doug Best in 2023 and Amanda Cutinha in 2023 and in respect of which this Costs Decision is intended to be a final determination of that time/fees.

Costs of the Quddus Respondents

40The net result of the Motion vis-à-vis the Quddus Respondents is mixed: they objected to the inclusion of paragraphs 22-29, 30, 31 and 37 in the proposed claim. However, they succeeded only in excluding para. 37, a proposed claim for punitive and exemplary damages, from the statement of claim to be permitted.

41While the Ahmed Plaintiffs were unsuccessful in obtaining an order allowing Ms. Salam to be added as a plaintiff on the new statement of claim, it is difficult to see that as a victory for the Quddus Respondents: they had already been named defendants in a separate action brought by Ms. Salam and the basis for denying the relief sought was simply to avoid a multiplicity of proceedings; there was no determination of Ms. Salam’s claims in favour of the Quddus Respondents.

42Overall, as between the Ahmed Plaintiffs and the Quddus Respondents, the result was mixed, a fact that I take into account in fixing costs.

43For the reasons set out, I am prepared to consider the fees that appear to relate to the issues before me. To be clear, I have not reviewed all the materials uploaded to Case Center, which total 1097 pages from the Ahmed Plaintiffs, 744 pages for Quddus Respondents and the comparatively modest, 97 pages uploaded by the CIBC.

44Instead, as neither the Quddus Respondents’ Bill of Costs, nor their Costs Outline, broke out the time spent on the issues to be determined on December 2, 2024, I took a broad-brush approach and considered only the costs recorded in 2024. Applying that approach, and without prejudice to the right of any party to ask the judge determining the matter to consider costs pre-dating 2024, for the purposes of fixing the of costs, I considered the following fees:

A. To update the Application/Responding materials:
Michael Stanton, 7 hours @ $420 = $2,940
Trent Howard, 6.5 hours @ $250 = $1,625

B. Preparation for the Motion/Application:
Michael Stanton, 6.1 hours @ $420 = $2,562

C. Attendance at the hearing:
Michael Stanton, 9.7 hours @ $420 = $4,074

D. Preparation of Costs Submissions:
Michael Stanton, 0.7 hours @ $420 = $294.00
Trent Howard, 4.5 hours @ $250 = $1,125.00

Total Fees: $12,620.00
On a Partial Indemnity rate: $12,620.00 x 65% = $8,203.00

The Law

45The court’s jurisdiction to award costs is found under section 131 of the Courts of Justice Act, RSO 1990, c C.43 (the “CJA”) and is subject to the principles and direction set out in r. 57.01 and in the jurisprudence.

46R. 57.01 provides that when exercising discretion under s. 131 of the CJA to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; and

the other factors set out at paragraphs (a) to (i) under r. 57.

47In 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, para 10, Perell J. reformulated the purposes of the modern costs rules as follows:

(1) to indemnify successful litigants for the costs of litigation, although not necessarily completely;
(2) to facilitate access to justice, including access for impecunious litigants;
(3) to discourage frivolous claims and defences;
(4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and
(5) to encourage settlements.

48As noted in Strype Barristers LLP v. Pavlovic, 2022 ONSC 1226, referenced by the Quddus Respondents, the two most important factors are the principle of indemnity and the amount of costs that the unsuccessful party could reasonably have expected to pay in the event they were unsuccessful.

49Overall, the objective is to fix an amount that is fair and reasonable, having regard for, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario, paras 26 and 38.

50A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, para 4; Fehr et al. v. Sun Life Assurance Company of Canada, 2021 ONSC 8368, para 83.

51The issues before me were not complicated. The Ahmed Plaintiffs were successful in achieving their goal of having the Application converted to an action. In fairness to the responding parties, that relief would likely have been unopposed, but for the Ahmed Plaintiffs’ request to include a number of claims in their draft statement of claim that raised new causes of action, some of which were statute-barred.

52With respect to the complaint that costs have been incurred because of delay, I have reviewed the endorsements and orders in Case Center, which are summarized below (the highlighting and each “NOTE” below, were authored by me):

1. May 11, 2022 – Parayeski J: Adjourned to a placeholder date of May 25, 2022. NOTE: Endorsement is silent as to costs.
2. November 18, 2022 – Standryk J.: No materials on motion before the court because the documents exceeded maximum size, matter adjourned to November 20, 2022. NOTE: Endorsement is silent as to costs;
3. Endorsement via email, November 29, 2022 from RSJ Sweeny granting leave to file material in excess of limits, provided that counsel all filed a compendium and a factum. NOTE: Endorsement is silent as to costs;
4. December 15, 2022 - endorsement of Skarica J.: Roy Wise, Michael Stanton, and D. Best appearing: on consent, matter adjourned to January 12 and 13, 2023. NOTE: Endorsement is silent as to costs;
5. December 16, 2022, endorsement of Skarica J.: No consent order could be finalized, matter adjourned to placeholder date of January 11, 2023. NOTE: Endorsement is silent as to costs.
6. January 13, 2023, MacNeil J, endorsement: on consent, matter adjourned to the week of April 10, 2023 for disposition. NOTE: Endorsement is silent as to costs;
7. June 20, 2023, Harper J, endorsement: “Set timetable”, (only Roy Wise noted as in attendance.) Note: Endorsement is silent as to costs.
8. June 27, 2023, endorsement of Harper, J.: “On consent, ADJ July 6, 2023 at 10 AM”. NOTE: Endorsement is silent as to costs;
9. July 6, 2023, endorsement of Sheard J.: Motion and application. Adjourned on consent to the week of November 13, 2023, to be heard simultaneously, with timetable set out. NOTE: Endorsement is silent as to costs.
10. January 16, 2024, endorsement of Bordin J.: all counsel present, – consent adjournment of all matters, requested by applicant, to second week of April, 2024. NOTE: Endorsement is silent as to costs.

53From these endorsements I would make two observations:

1. many of the adjournments are consent adjournments and it hardly lies in the mouth of any party to complain about delay, when the adjournments were made on consent; and,
2. the endorsements are silent as to costs. As such, no party may make a claim for the costs of the court attendance: London Eco-Roof Manufacturing Inc. v. Syson, 2020 ONSC 3101; Williams v. Provost, 2022 ONSC 3255.

Disposition

54For the reasons given, and without prejudice to the parties’ rights to seek other or additional costs from the judge hearing the Action, and having considered the parties’ submissions and the applicable legal principles, I fix the parties’ costs of the matter heard by me on December 2, 2024 as follows:

1. The costs of the CIBC, which was largely successful on the motion, its partial indemnity costs fixed in the amount of $10,860.00, all inclusive, to be paid by the Ahmed Plaintiffs. This amount is slightly less than the partial indemnity costs set out in the Costs Outline, which went beyond the scope of the costs to be determined by me.
2. In view of the mixed success as between the Ahmed Plaintiffs and the Quddus Respondents, I award no costs.

Justice L. Sheard