2025 ONSC 2127
COURT FILE NO.: CV-21-00663825-00CL
DATE: 2025-04-04
SUPERIOR COURT OF JUSTICE – ONTARIO (COMMERCIAL LIST)
RE:
Tridelta Investment Counsel Inc., Tridelta Fixed Income Fund, Tridelta High Income Balanced Fund, 2830063 Ontario Inc., 2830064 Ontario Inc., 2830068 Ontario Inc., GTA Mixed-Use Developments L.P., Mixed-Use Developments (Ontario) L.P. and Wasaga Developments and Infrastructure 2021 L.P. (Plaintiffs / Moving Parties)
- and -
GTA Mixed-Use Developments GP Inc., Mixed-Use Developments (Ontario) GP Inc., Wasaga Developments and Infrastructure GP Inc. and U Developments Inc. (Defendants / Plaintiffs by Counterclaim / Respondents)
- and -
Tridelta Investment Counsel Inc., Tridelta Fixed Income Fund, Tridelta High Income Balanced Fund, 2830063 Ontario Inc., 2830064 Ontario Inc. and 2830068 Ontario Inc. (Defendants by Counterclaim)
BEFORE: Kimmel J.
COUNSEL:
Lauren Tomasich & Jayne Cooke for the Plaintiffs and Defendants by Counterclaim
Annamaria Enenajor, Heather Gunter & Simon Bieber for the Defendants and Plaintiffs by Counterclaim
HEARD: 2025-02-28
Endorsement (Contempt Sanction Motion and Costs of Contempt and Charter Motions)
Procedural Context for the Contempt Sanction and Costs
[1] In a decision released on July 10, 2024 (the "Contempt Decision": Tridelta Investment Counsel Inc. v. GTA Mixed-Use Developments GP Inc., 2024 ONSC 3896), the court found that the defendants had failed to comply with the earlier trial decision in this matter dated September 18, 2023 (the "Trial Decision": Tridelta Investment Counsel Inc. v. GTA Mixed-Use Developments GP Inc., 2023 ONSC 5099). Shortly before the hearing of the Contempt Motion, the court released its decision regarding the trial costs on June 19, 2024 (the "Costs Decision": Tridelta Investment Counsel Inc. v. GTA Mixed-Use Developments GP Inc., 2024 ONSC 3543, at para. 69). In the Costs Decision, the Court ordered that the defendants forthwith pay to the plaintiffs (the defendants to the counterclaim, collectively referred to as “TriDelta”) substantial indemnity costs of the trial, fixed in the all-inclusive amount of $1,000,000. On October 10, 2024, the Court of Appeal dismissed both the appeal of the Trial Decision, and the defendant’s motion for leave to appeal the Costs Decision, and ordered that the defendants (also the plaintiffs by counterclaim) pay costs of the appeal fixed in the amount of $50,000.
[2] The Contempt Decision dealt with the failure of the defendants to comply with the Trial Decision. TriDelta asserts that the defendants still have not done all that they were directed to do in the Contempt Decision, nor have they paid the trial or appeal costs that they were ordered to pay. However, no further findings of contempt are sought by TriDelta at this time. Rather, the plaintiffs rely on these failures to comply as part of their response to the alternative “set-off” argument of the defendants and Mr. Tajbakhsh (discussed in detail below).
[3] The finding of contempt came nearly nine months following the release of the Trial Decision, and after the plaintiffs were forced to spend significant time, money and effort attempting to obtain compliance with the court’s orders and directions contained in the Trial Decision. The compliance concerns were focused largely on the aspects of the Trial Decision that required the defendants to transfer the assets, books and records, management and operation of assets of the subject “Limited Partnerships” to TriDelta, which is why the plaintiffs sometimes refer to the order arising out of the Trial Decision as the “Turnover Order”. The subject Limited Partnerships are GTA Mixed-Use Developments L.P., Mixed-Use Developments (Ontario) L.P. and Wasaga Developments and Infrastructure 2021 L.P.
[4] The particulars of the findings that the defendants and their principal, Mr. Tajbakhsh, personally were in contempt of the Turnover Order are detailed in earlier decisions, endorsements and orders of the court. This endorsement addresses the sanctions phase of the contempt findings.
[5] The TriDelta’s position is summarized in its factum as follows:
The Defendants and Mr. Tajbakhsh's unjustified, unreasonable, and obstinate refusal to comply with the Turnover Order has generated extraordinary costs for TriDelta. These actions have imposed an unnecessary and significant burden on the Court's resources, as the parties have had to attend numerous post-trial appearances related to compliance with the Turnover Order. The Defendants and Mr. Tajbakhsh must be held accountable for their contempt and the astronomical costs that they have forced TriDelta to incur to obtain whatever compliance it has managed to achieve with the Turnover Order. Mr. Tajbakhsh has repeatedly shown a complete and utter disregard for this Court's processes and the administration of justice. A serious sanction upon him and the entities he solely controls in the form of a full indemnity costs award of $608,944.78 is necessary to reflect appropriate denunciation for this behaviour and to safeguard the societal imperative of adherence to court orders.
[6] In the Contempt Decision the court addressed two motions that were heard at the same time, the plaintiffs’ motion for contempt (the “Contempt Motion”), and a “Stay Motion” brought by the defendants that was predicated on alleged Charter breaches committed in the course of the prosecution of the Contempt Motion. The court found (as summarized at paragraph 151(b) of the Contempt Decision) that:
[T]he plaintiffs did not provide the required timely disclosure of the Yale Production before the defendants waived their right to silence and responded to the Contempt Motion. Further, the plaintiffs split their case on the Contempt Motion by waiting to conduct the examination of the Yale witness about the Yale Production until after they had cross-examined the defendants’ affiant on the Contempt Motion. These are Charter breaches but they do not warrant a stay of the Contempt Motion. The appropriate remedy on the Stay Motion is to preclude the plaintiffs from relying upon the Yale Production and evidence from the Yale witness in support of the further instances of alleged contempt. Without the excluded evidence, the plaintiffs were not able to meet their burden of proving beyond a reasonable doubt some of the alleged instances of contempt by the defendants.
[7] In the Contempt Decision (at para. 149), the court expressed the preliminary view that costs should be awarded on a divided basis, reflecting the success of the parties; namely"in favour of the plaintiffs on the Contempt Motion and in favour of the defendants on the Stay Motion." Neither of the parties is seeking this specific outcome.
The Positions of the Parties
[8] TriDelta is seeking:
a. its full indemnity costs of the Contempt Motion (in the all-inclusive amount of $608,944.78) as the sanction for the findings of contempt; and
b. no order as to costs for the Stay Motion; specifically, that it not be awarded its costs and also that it not be ordered to pay any costs of the Stay Motion.
[9] The respondents on the Contempt Motion (the defendants and Mr. Tajbakhsh) and moving parties on the Stay Motion (the defendants) submit that the parties should be ordered to bear their own costs of both the Contempt Motion and the Stay Motion, and that there should be no other sanction ordered in respect of the findings of contempt. Alternatively, they ask that they be awarded their substantial indemnity costs of the Stay Motion and that those be set off against any costs that they are ordered to pay in respect of the Contempt Motion.
[10] TriDelta raises two primary arguments against this alternative position and against any order of set-off:
a. Since the defendants and Mr. Tajbakhsh have been found in contempt of court for non-compliance with court orders, and they have still not paid the trial or appeal costs that they were ordered to pay (in excess of $1,000,000), they should not be permitted to take the step of asking for an award of costs for the Stay Motion or for an order of set-off; and
b. Even if they are not prohibited from making these requests, Mr. Tajbakhsh was not a moving party on the Stay Motion and has no right to costs of the Stay Motion. He was at the center of the Contempt Motion and a finding of contempt was made against him personally. Since the parties are not the same on the two motions, there is no mutuality of debts and the costs cannot be set-off against each other in any event.
[11] In May of 2024 when the Contempt Motion and the Stay Motion were heard, the costs outlines of the parties indicated that:
a. TriDelta’s combined costs for both motions was approximately $707,000 for fees on a full indemnity basis. While the costs of the two motions were not broken out in their original costs outline, TriDelta later represented that approximately $132,000 of the total costs claimed in May of 2024 was attributed to the Stay Motion, with the remainder being for the Contempt Motion. [1]
b. The defendants (and Mr. Tajbakhsh in relation to the Contempt Motion) had submitted costs outlines that segregated their costs of the two motions as follows:
i. Contempt Motion costs of approximately $310,000 on a full indemnity basis ($280,000 substantial indemnity and $187,000 partial indemnity); and
ii. Stay Motion costs of approximately $285,000 on a full indemnity basis ($258,000 substantial indemnity and $177,000 partial indemnity).
Analysis
Sanction for Contempt
[12] In the Contempt Decision, the court observed (at para. 136) that TriDelta had: “been met with resistance from [the Former General Partners] at every turn, having to return to court multiple times and eventually to bring the Contempt Motion, so that they can obtain all of the documents and records from the defendants that they need to operate and manage the business of the Limited Partnerships."
[13] A finding of contempt must have consequences. The sanction sought by TriDelta is an order for the full indemnity costs of the Contempt Motion against the Former General Partners (defendants) and personally against their principal, Mr. Tajbakhsh, who was also found to be in contempt. TriDelta does not seek a penal sentence or fine.
[14] Rule 60.11(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that, in fashioning the appropriate sanction for contempt, the court "may make such order as is just" which includes, among other things, ordering the contemnor to "pay such costs as are just."
[15] In determining the appropriate sentence for civil contempt, the court may have regard to the following factors, among others:
a. the proportionality of the sentence to the gravity of the offense and the degree of responsibility for the wrongdoing;
b. the presence of aggravating and mitigating factors;
c. the importance of deterrence and denunciation, in both denouncing unlawful conduct and promoting a sense of responsibility in the contemnor, while also deterring the contemnor and others from defying court orders;
d. the similarity of sentences in like circumstances; and
e. the reasonableness of a fine or incarceration.
See Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663, at para. 90.
[16] In applying the Cavalon factors, the first thing to note is that the contemnors have been found to have flagrantly disregarded the court’s process and orders. They were given many opportunities to remedy the situation before the contempt hearing, but chose instead to resist or evade compliance at every opportunity. The court found (at para. 90 of the Contempt Decision) that they have disrespected the court by intentionally adopting an extraordinarily and disingenuously narrow interpretation of the scope of the Turnover Order, in order to avoid their clear obligations to TriDelta. TriDelta was forced to expend significant amounts to pursue compliance, in the face of constant and deliberately disingenuous resistance, all so to obtain the documents TriDelta was entitled to under the clear terms of the Turnover Order.
[17] The requested sanction of an award of full indemnity costs of the Contempt Motion will publicly denounce their flagrant and continuous disregard for this court's authority, while ensuring that TriDelta is not required to bear the costs of having to bring the Contempt Motion just to have the Trial Decision obeyed. An award of costs at this elevated level is both proportionate and appropriate.
[18] The wilful and intentional conduct of the defendants and Mr. Tajbakhsh is also an aggravating factor: see The Corporation of the Township of King v. 11547372 Canada Inc. et al, 2022 ONSC 2261, at para. 20. They have already been found to have taken disingenuous positions and intentional actions to avoid their clear obligations under the Trial Decision (e.g., see Contempt Decision, at para. 90). I do not agree with their attempt to characterize their conduct as falling on the lesser end of the scale of non-compliance. They were strategic, and thus intentional, in aspects of their non-compliance which, by their own submissions, persisted until at least August 8, 2024, after the Contempt Decision was released, and they were only ultimately compliant following the Contempt Decision.
[19] Parties who have been found to have committed contempt face a rebuttable presumption of elevated costs: see Astley v. Verdun, 2013 ONSC 6734, at paras. 52-57, aff’d 2014 ONCA 668. An elevated level of substantial indemnity costs was the norm historically, but more recently it has been determined that the presumptive elevated costs should be on a full indemnity basis. The elevated level of full indemnity costs has been awarded in other contempt cases: see Dankiewicz v. Sullivan, 2023 ONSC 4912, at para. 23(c); 1307347 Ontario Inc. v. 1243058 Ontario Inc. (c.o.b. Golden Seafood Restaurant), [2001] O.J. No. 585, at paras. 5, 10. Costs on a full indemnity basis have been referred to as "the general practice" in civil contempt proceedings: see Dankiewicz, at para. 26; Castillo v. Xela Enterprises Ltd., 2022 ONSC 6696, at paras. 6-7, aff’d at 2024 ONCA 141, at para. 102.
[20] The types of mitigating factors that have been held in other cases to rebut the presumption of elevated costs (for example, see Astley, at para. 57) fall short or do not exist in this case. The contemnors did not apologize and were not contrite until after the Contempt Motion was well underway. Any efforts that they did make to purge their contempt were largely in response to further court direction requiring them to expand upon their own narrow interpretations of the court’s orders. The contemnors resisted the Contempt Motion through to the end, and did not attempt to minimize the costs borne by TriDelta in having to come back to court repeatedly to gain their compliance with the Turnover Order. I do not consider their contempt to fall on the lower end of the flagrant and wilful scale. Every case is fact specific. I find the conduct of the contemnors in this case to fall on the more egregious end of the scale indicative of disrespect for the court’s process.
[21] The defendants ask for a lenient sentence because this is the first time they have been found in contempt and they did eventually purge their contempt, relying on Citti v. Klein, 2022 ONSC 293, at para. 7. That leniency is reflected in the fact that TriDelta is not asking for a penal sentence or fine. The requested sentence of an award of full indemnity costs is lenient, in comparison to other potential available sanctions.
[22] While gaining compliance with the court's orders is the primary aim of sentencing in civil contempt proceedings, courts have recognized that punishment and deterrence are also important given that acts of civil contempt undermine the authority of the courts and diminish respect for the law: see Cavalon, at para. 78.
[23] The defendants and Mr. Tajbakhsh argued that TriDelta’s delay in moving forward with the sanctions hearing after the Contempt Decision was rendered in July 2024 (and after they say they purged their contempt in August 2024) was another factor mitigating against the award of full indemnity costs being awarded to TriDelta. I find that the delay, which was really only until December 2024 when the court was first asked to schedule and timetable the sanctions hearing, was adequately explained and not a relevant consideration in this case. Nor was this a case of “mixed success” on the Contempt Motion as the defendants have suggested. There was a finding of contempt and that is what matters for purposes of determining the appropriate sanction commensurate with the contempt finding.
[24] Having regard to these factors, in the exercise of my discretion, I find that it is just in the circumstances of this case to award TriDelta its full indemnity costs of the Contempt Motion as the sanction for the court’s findings of contempt against the defendants and Mr. Tajbakhsh.
[25] The conduct of the plaintiffs in breaching the Charter in their prosecution of the Contempt Motion will be addressed in the context of the determination of the costs of the Stay Motion. The Charter breaches are also a relevant consideration in the court’s determination of the appropriate quantum of full indemnity costs to award to the plaintiffs for the Contempt Motion. These considerations are discussed in the following sections of this endorsement.
[26] The sanction of full indemnity costs (reduced to remove costs associated with excluded evidence due to the finding of Charter breaches, as outlined below) strikes the appropriate balance of instilling respect for both the court's process in response to the defendants' contempt and respect for the shared set of values expressed in the Charter in response to the plaintiffs' unconstitutional prosecution: see R. v. Nasogaluak, 2010 SCC 6, at paras. 47, 49.
The Quantum of Full Indemnity Costs
[27] The $608,944.78 in full indemnity costs claimed by TriDelta includes (i) costs incurred as a result of the numerous post-trial appearances; (ii) costs incurred in relation to the Contempt Decision itself; and (iii) costs incurred following the Contempt Decision in continued efforts to compel compliance.
[28] TriDelta has provided authority for the post-contempt hearing costs that it seeks as part of this sanction. Like in Dankiewicz (at para. 26), the costs associated with the contempt finding should not be limited to costs incurred only prior to the first stage of the contempt motion. Some of TriDelta’s claimed costs were justifiably incurred after the Contempt Motion (the estimated amount of post-hearing contempt costs is just over $25,000). The costs of the sanction hearing itself are a different matter, addressed at the end of this endorsement, but I find that costs of continuing to procure compliance with the Turnover Order after the Contempt Decision are properly part of the costs recoverable as part of the sanction.
[29] The defendants and Mr. Tajbakhsh challenge the amount claimed on a number of grounds:
a. That they include costs of the Stay Motion;
b. They are too high because of the number of counsel and legal professionals involved and their hourly rates, and the amount claimed was not within their reasonable contemplation and is not proportionate; and
c. They include costs associated with evidence that was ruled inadmissible on the Stay Motion.
[30] The first challenge was demonstrated to be based on a misunderstanding and was not pursued at the sanctions hearing. The costs claimed by TriDelta for the Contempt Motion have been confirmed not to include the costs that TriDelta’s counsel attributes to the Stay Motion.
[31] The second challenge is grounded in the fact that the claimed costs for the Contempt Motion by the defendants and Mr. Tajbakhsh were $310,000 on a full indemnity basis, which is approximately half of the amount claimed by TriDelta. They say these costs exceed what they reasonably expected to pay if they lost the Contempt Motion and are disproportionate.
[32] I disagree. The number of legal professionals working on the TriDelta team and their hourly rates were well known to the defendants and Mr. Tajbakhsh and the complaints about the differences in how they staffed their legal teams was addressed in the Trial Costs Decision (see for example paragraphs 32-39) and will not be revisited now again. All of that to say that it should have been within the reasonable contemplation of the defendants and Mr. Tajbakhsh that the costs claimed by TriDelta, who bore the burden of proof on the Contempt Motion, would be more than what the responding parties on that motion had paid to their own legal professionals.
[33] However, there is some merit to the third challenge by the defendants and Mr. Tajbakhsh, regarding the inclusion of costs associated with the evidence that was ordered to be excluded on the Stay Motion due to Charter breaches. That evidence was not insignificant, and would have occupied time throughout much of the lead up to the Contempt Motion (above and beyond the time spent defending the Stay Motion which has been excluded from the costs claimed for the Contempt Motion by TriDelta). I agree with the defendants that TriDelta should not be permitted to recover costs associated with the time spent to obtain, review and make submissions about evidence found to be subject to a breach of the Charter.
[34] The determination of the appropriate quantum of full indemnity costs to award to TriDelta for the Contempt Motion is necessarily imprecise, but not impossible as the defendants suggest. The court is regularly required to make general cost allocations when determining the appropriate quantum of costs to award. When asked to do so, the defendants came back after a break during the hearing and provided submissions on which aspects of the costs claimed should be reduced, and by what amounts, leading to the suggestion that the full indemnity costs of TriDelta for the Contempt Motion, after removing costs associated with the evidence that was subject to the Charter breaches, should be approximately $356,000.
[35] While not each of the points of reduction suggested by the defendants have been accepted in their entirety, the evidence that was ordered to be excluded in the result of the Stay Motion was significant, as demonstrated by its prominence in the case conferences, affidavits, cross-examinations and the written and oral submissions in support of the Contempt Motion. The evidence turned out not to be needed for TriDelta to succeed on the Stay Motion. I have determined in the exercise of my discretion that the all-inclusive full indemnity costs claimed by TriDelta of $608,944.78 should be reduced by 25% to ensure that costs are not awarded in respect of work done that was tainted by the court’s finding of Charter breaches on the Stay Motion. This is similar to the approach taken by the court in one of the cases relied upon by the defendants, Castillo v. Xela Enterprises Ltd., 2022 ONSC 6696, at para. 21.
[36] Accordingly, TriDelta is awarded its full indemnity costs of the Contempt Motion as the successful party on that motion and as the sanction for the court’s finding of contempt, fixed in the all-inclusive amount of $456,708.58.
Costs of the Stay Motion
[37] The defendants maintain their entitlement to costs of the Stay Motion. The court found that the plaintiffs breached the Charter when they failed to make certain disclosures in a timely manner, and then compounded the situation by effectively splitting their case with the evidence sought to be relied upon for the Contempt Motion. The court has already found that they are entitled to their costs of that motion. I agree that they should receive a higher level of substantial indemnity costs, as they have requested, so that they receive a reasonable level of indemnification for the costs they incurred to secure their basic Charter rights: see R. v. Ciarniello, at para. 45.
[38] The scale and quantum of the costs of the Stay Motion should, if possible, be determined by the judge that decided that motion, as prescribed by Rule 57.03(1). The fact that the defendants have not paid other costs awards is not a reason for the court to avoid or defer the determination of the scale and quantum of costs that they are entitled to for their Stay Motion. I am best situated to do this and it is best done now, rather than later.
[39] The claimed substantial indemnity costs of the defendants for the Stay Motion are $258,000 (based on the Costs Outline they submitted at the conclusion of the hearing of the Stay Motion). TriDelta has not challenged this amount. It has only argued that these costs should not be fixed at the behest of the defendants because they have not paid the costs of the trial or the appeal, a submission that I have rejected.
[40] In my view, asking the court to fix the costs of a motion that was heard prior to the Appeal Decision that affirmed the Trial Costs Decision and ordered the payment of additional costs of appeal is not a new proceeding or a further step in a proceeding that might otherwise be precluded by their non-payment of the outstanding trial and appeal costs.
[41] I fix the costs of the defendants for the Stay Motion in the all-inclusive claimed amount of $257,998.38. Although Mr. Tajbakhsh has claimed costs of the Stay Motion, he was not a named moving party in the notice of motion [2] and is not entitled to costs, even if some aspects of the relief ultimately granted on that motion arose from breaches of individual rather than corporate Charter rights (a distinction that has only been raised in the context of the determination of costs question now and was not a focus of submissions by either side when the Stay Motion was argued).
[42] The question of whether or when TriDelta should have to pay these costs, and whether they can be set off against the much higher combined outstanding costs awards payable to TriDelta, is addressed in the next section of this endorsement.
Set-Off Considerations
[43] If the amount of costs awarded to the plaintiffs for the Contempt Motion and to the defendants for the Stay Motion had been roughly equivalent then the defendants argued for a functional set-off – with each side bearing their own costs of both motions and neither writing a cheque to each other. That was not the outcome.
[44] The defendants and Mr. Tajbakhsh rely on the case of Kim v. Cho, 2010 ONSC 1105, in which the court considered the defence of set-off where the defendant was being sued personally, and his claim for set-off applied to an agreement between the defendant's corporation and the plaintiff's corporation. The court held that because the request for set-off involved different parties, there was no foundation for the claim: see Kim, at para. 5. They say that is a justification for not finding them to be in breach of prior orders so as to preclude them from seeking an award of costs in their favour on the Stay Motion.
[45] TriDelta relies upon this same principle of required mutuality of debt in support of its submission that the costs award in the plaintiffs’ favour on the Contempt Motion (against the defendants and Mr. Tajbakhsh personally) should not be set off against any costs TriDelta may have to pay for the Stay Motion that Mr. Tajbakhsh was not a party to (although he now argues that he effectively was because the alleged s. 7 (as opposed to s. 11) Charter breaches could only have been committed against him and not against the corporate entities/Limited Partnerships). I agree that the debts are not mutual in the strict sense and that mutuality of debt is required for set-off: see s. 111(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43. More importantly, however, I am not persuaded that it would be just and equitable for the costs that were awarded as a sanction for contempt to be diluted by any other costs awards. That sanction should, in my view, stand on its own.
[46] In contrast, the defendants have already been granted a remedy for the Charter breaches that the court found on the Stay Motion, by the exclusion of certain evidence (see Contempt Decision at para. 151(b)). The court accepts that there should be a remedy for a Charter breach, as prescribed by s. 24(1) of the Canadian Charter of Rights and Freedoms (see also Dagenais v. Canadian Broadcasting Corp., at p. 867, and Ontario v. 974649 Ontario Inc., 2001 SCC 81, at para. 20, for example), but a remedy has already been prescribed. The costs award for the Stay Motion is a separate matter in the circumstances of this case.
[47] The defendants do not address head on the question of whether any costs that they are awarded for the Stay Motion should be set off against the prior outstanding trial and appeal costs awards awarded in TriDelta’s favour – on the face of the pleadings, those involved the same parties and should be set-off. I find it to be just and equitable to do so.
[48] While the plaintiffs argue that any “set-off” would be a further step that is precluded by the failure to have paid those trial and appeal costs, I disagree. It is an exercise of the court’s equitable jurisdiction to do what is just and equitable in the circumstances, and I so order, pursuant to sections 96, 106 and 111 of the Courts of Justice Act.
[49] The defendants are not being permitted to access the court while not in compliance with previous court orders, which is the mischief that the cases relied upon by TriDelta is attempting to address (see: Canadian Express Ltd. v. Blair; Kelly v. Hays; and Wilcox v. Abittan, 2024 ONSC 3180, for example). Here, the court is tying up loose ends, including a costs entitlement that arose out of a motion argued in May 2024, before the costs of the trial and the appeal were affirmed by the Court of Appeal in October 2024. Now that all of the cost amounts have been determined, there should be a net payment made. Put another way, the plaintiffs should not be required to pay the costs that they were ordered to pay on the Stay Motion when the costs payable to them by the defendants under the Trial Decision and for the appeal exceed what the plaintiffs owe.
Reconciliation of Costs Awards
[50] For the reasons detailed above:
a. As a sanction for the court’s finding of contempt, the defendants and Mr. Tajbakhsh shall forthwith pay to TriDelta its full indemnity costs of the Contempt Motion, fixed in the all-inclusive amount of $456,708.58. This amount is not subject to set-off.
b. The defendants are entitled to their substantial indemnity costs of the Stay Motion, fixed in the all-inclusive amount of $257,998.38, which may be set-off against the prior outstanding awards of costs against them in the trial and the appeal.
Costs of the February 28, 2025 Attendance
[51] The parties were not able to reach an agreement on the costs to be awarded for the February 28, 2025 hearing that determined the sanctions for contempt and costs of the Contempt and Stay Motions.
[52] TriDelta’s all-inclusive full indemnity costs of the February 28, 2025 hearing are certified in their costs outline to be $75,050.10 (substantial indemnity are $67,545.09 and partial indemnity are $45,030.06).
[53] The defendants and Mr. Tajbakhsh claim all-inclusive full indemnity costs are certified in their costs outline to be $90,638.28 (substantial indemnity are $82,804.73 and partial indemnity are $59,304.06).
[54] The main focus of the proceedings on February 28, 2025 was the sanction hearing. TriDelta was successful and, as a continuation of the sanction for contempt, it is entitled to its full indemnity costs of the sanction hearing. I fix those costs in the all-inclusive amount of $50,000, recognizing that some of the amounts detailed in TriDelta’s costs outline would have been directed to the other issues, such as the determination of costs of the Stay Motion and set-off considerations. In the exercise of my discretion, I am awarding no costs in respect of the other issues addressed at the February 28, 2025 hearing, beyond the costs of the sanction hearing awarded in favour of the plaintiffs.
[55] To be clear, for the February 28, 2025 hearing, TriDelta is awarded its all-inclusive full indemnity costs of the sanction hearing in the amount of $50,000, payable by the defendants and Mr. Tajbakhsh. None of the parties are awarded any other costs for that appearance.
[56] The endorsement and the directions, orders and costs awards set out herein, shall have the immediate effect of a court order without the necessity of a formal order being taken out.
Kimmel J.
Date: 2025-04-04
Notes
[1] The amount now claimed by TriDelta for the Contempt Motion is $608,944.78 (all inclusive, on a full indemnity basis). TriDelta also advised that an error was subsequently discovered in the original costs outline that was adjusted when the calculations were done to fully segregate the costs of the two motions, and this resulted in less fees claimed for the Contempt Motion leading up to the hearing. For purposes of allocating the costs between the two motions, the attendance at the hearing of the two motions was split equally between the two. The amount now claimed for the Contempt Motion also includes some time (approximately $25,000 in fees) spent after the hearing of the Contempt Motion, dealing with continued enforcement efforts, including those arising from directions contained in the Contempt Decision.
[2] The May 3, 2024 Notice of Motion for the Stay Motion identified the moving parties to be: the Defendants and moving parties, GTA Mixed-Use Developments GP Inc., Mixed-Use Developments (Ontario) GP Inc., Wasaga Developments and Infrastructure GP Inc., and U Developments Inc.