Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Fahimeh Ahrami, Plaintiff
AND:
Raouf Ghadrdoust, Nooshin Kadivar and Nima Pirayeshakbari, Defendants
BEFORE: The Honourable Justice S. Lavine
COUNSEL: Brian Sherman, Counsel, for the Plaintiff/Responding Party, Fahimeh Ahrami
Marc Whiteley and Dylan S. Fisher, Counsel, for the Defendant/Moving Party, Nima Pirayeshakbari
HEARD: In writing
COSTS ENDORSEMENT
LAVINE, J.
1For reasons provided on July 12, 2024, I granted the motion brought by the defendant, Nima Pirayeshakbari, and discharged the certificate of pending litigation that had been registered on title to 348 Monarch Park, a residential property in East York (“the property”). Mr. Pirayeshakbari is the registered owner of the property.
2Mr. Pirayeshakbari purchased the property from the co-defendant, Nooshin Kadivar, on March 27, 2019 for $829,000.
3In this action, the plaintiff, Fahimeh Ahrami, claims a declaration that the transfer of title to the property from Ms. Kadivar to Mr. Pirayeshakbari on March 27, 2019 was a fraudulent conveyance and asks that the transfer be set aside. Ms. Ahrami claims that Ms. Kadivar held a 31% interest in the property in trust for her. Ms. Ahrami alleges that three defendants collectively conspired to fraudulently transfer title to the property from Ms. Kadivar to Mr. Pirayeshakbari in order to covert Ms. Ahrami’s equitable one-third ownership interest in the property to the defendants’ own use.
4The plaintiff commenced this action on November 19, 2019, and on November 30, 2019, she moved ex parte for leave to issue and register a certificate of pending litigation on the property. The plaintiff’s motion was granted, and she registered a certificate of pending litigation on title to the property.
5This action and a companion action, Zeyuan Deng and Mehdi Moradi v Raouf Ghadrdoust, Nooshin Kadivar, Nima Pirayeshakbari and the Law Office of F. Haghighat Jou, came before Sutherland J. at a case conference on September 2021. Sutherland J. set a timetable for Mr. Pirayeshakbari to bring a motion for summary judgment, to dismiss the actions against him which was to be heard in the Fall 2021 civil sittings. The two actions continued to move in tandem, with timetables for various steps in both actions addressed at case conferences throughout 2021, 2022 and 2023.
6At a case conference on September 19, 2023, Sutherland J. directed that a motion by Mr. Pirayeshakbari to deal with setting aside the certificate of pending litigation registered on title to the property would be heard in the last week of the fall trial sittings. This is the matter that came before me.
7The parties have been unable to reach agreement on the issue of costs of the motion and delivered written submissions. I have considered those submissions.
8The awarding of costs for a step in the proceeding is in the discretion of the court, guided by the non-exhaustive list of factors set out in Rule 57.01 of the Rules of Civil Procedure. The overall objective is to fix costs in an amount that is fair and reasonable: Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ONCA), (2004), 71 O.R. (3d) 291, at para. 24. As the Court of Appeal has explained, the judge awarding costs should determine the reasonable amount that the unsuccessful party could expect to pay, rather than any exact measure of the actual costs of the successful litigant. See, Davies v. Clarington (Municipality), 2009 ONCA 722 at paragraph 52.
9Mr. Pirayeshakbari seeks partial indemnity costs of $37,279.00 (inclusive of disbursements and HST) for legal costs and disbursements related to this motion.
10Mr. Pirayeshakbari’s position is that he is entitled to his costs of the motion but has limited his request to the costs of preparation of the factum and other written submissions for the motion, preparation for oral submissions and the hearing of the motion. He states that the legal costs related to preparation of affidavits, production of documents and examinations should be reserved to the motions judge hearing the summary judgment motion, if brought; or to the trial judge; or as otherwise agreed by the parties.
11Mr. Sherman, counsel for Ms. Ahrami, does not dispute that Mr. Pirayeshakbari is entitled to an award of costs as the successful party on the motion, but suggests that the costs awarded to Mr. Pirayeshakbari should be no more than $5,000.
12The factual issues on the motion were sufficiently complex that factums, lengthy oral submissions and then further written submissions were made. The motion was of importance to Mr. Pirayeshakbari.
13Mr. Sherman observes that significant cost was expended in responding to what, for many years, had been anticipated to be a summary judgment motion. The materials filed on this motion were voluminous. However, as stated, Mr. Pirayeshakbari, fairly, does not seek costs for the affidavits, documentary production and examinations which will be used for a motion for summary judgment and/or trial.
14I have reviewed the cases referred to in the written submissions on behalf of Mr. Pirayeshakbari, which are provided as examples of motions concerning certificates of pending litigation in which costs in the range of $25,000 were awarded some ten and twenty years ago, which it is argued, supports the reasonableness of the costs award sought of approximately $37,000. The cases are useful as some indication of costs awards made in motions that appear to be not dissimilar in their degree of complexity; however, all cases turn on their particular factual circumstances. I also note that one of the cases involves an award on a substantial indemnity basis, and in another, costs were being awarded for the preparation of affidavits and examinations. In this case, these costs are reserved to trial and/or agreement of the parties.
15I have reviewed the bill of costs prepared by counsel, Marc Whiteley and Dylan Fisher on behalf of Mr. Pirayeshakbari. Mr. Sherman did not provide a bill of costs, or summary of his time expended, as a comparator. Even bearing in mind the factual complexity, I, nevertheless, find there to be excess time in preparation for the motion, and a degree of duplication in the work of both counsel, which warrants a reduction.
16Considering all of the circumstances, as set out above, I conclude that it is fair and reasonable to fix the moving party/defendant’s costs for legal fees and disbursements, inclusive of taxes, in the all-in amount of $20,000, payable by the plaintiff/responding party Fahimeh Ahrami to the moving party/defendant, Nima Pirayeshakbari.
The Honourable Justice S. E. Lavine
Date: May 2, 2025