Court File and Parties
Court File No.: CV-17-73865 Date: 2025-08-06 Superior Court of Justice – Ontario
Re: Hassan Salem and Danya Geha, Plaintiffs And: Alphonso D. Reid, Defendant
Before: The Honourable Mr. Justice Marc Smith
Counsel:
- Michael R. Switzer, Counsel for the Plaintiff Hassan Salem
- Kathleen Carkner, Counsel for the Plaintiff Danya Geha
- Jaime Wilson, Counsel for the Defendant
Heard: July 17, 2025
Reasons for Decision
M. Smith J
Overview
1The purpose of the hearing was to determine if costs should be paid by the main Plaintiff, Hassan Salem for an unproductive pre-trial conference and the adjournment of the trial.
2A fourth pre-trial conference had been scheduled to proceed on April 3, 2025. A six-week trial was set to commence on April 17, 2025. Mr. Salem did not attend the pre-trial conference and his lawyer Mr. Switzer was also not present at the pre-trial conference due to a conflict in his schedule. I was advised that Mr. Salem had terminated the services of his lawyer, Mr. Switzer. Given the circumstances, I vacated the trial date.
3The other Plaintiff, Danya Geha and the Defendant seek an order for costs against Mr. Salem in the amounts of $11,000 and $50,000, respectfully.
Brief Facts
4A Statement of Claim was issued on September 8, 2017.
5Mr. Salem claims damages resulting from a motor vehicle accident that occurred on December 5, 2015. Ms. Geha claims damages pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F.3.
6A mediation was held in May 2021, followed by a pre-trial conference in September 2021. It is alleged that both opportunities to resolve the matter early were soured by Mr. Salem's lack of preparation, his unwillingness to engage in settlement discussions, and his failure to provide settlement discussions to his counsel.
7A second pre-trial conference proceeded on December 10, 2024. Doyle J.'s Endorsement reads: "Pre-trial held. Fruitful discussions occurred. Parties will return before me for a continuation of the pre-trial on Dec. 31, 2024 at 930 a.m., virtual attendance."
8On December 31, 2024, the continuation of the pre-trial conference was held. Doyle J.'s Endorsement reads: "Another pre-trial was held today. The parties are unable to resolve this matter at this time. If they wish to attend another pre-trial before the jury trial in April 2025, they can request one from the Trial Coordinator's office. I am not seized of this matter."
9On March 28, 2025, a second voluntary mediation took place. The mediation failed because it is alleged that Mr. Salem stormed out of the mediation.
10On April 4, 2025, the parties appeared before me for a fourth pre-trial conference. As noted above, Mr. Salem and his lawyer did not attend. The trial date was vacated.
Issue
11The only issue to be determined is whether costs should be awarded against Mr. Salem because of his past conduct and his failure to attend the fourth pre-trial conference, resulting in the adjournment of the trial.
Legal Principles
12Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990 c. C.43, costs are in the discretion of the court.
13Rule 57(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules") sets out the factors to consider in awarding costs.
14Rule 50.12(2) of the Rules allows the court to award costs where it is determined that the pre-trial conference is rendered unproductive due to a party's conduct.
15The purpose of a pre-trial conference is to provide each party with an opportunity to better understand the other party's case and obtain a judicial opinion. If a party fails to attend a pre-trial conference, this failure to abide by the Rules is unfair to the court and the other party. Time is wasted and the parties cannot benefit from receiving the court's feedback: Prabaharan v. RBC General Insurance Co., 2018 ONSC 1186.
16The assessment of costs thrown away is not a task of precision or scientific endeavour. It is a speculative and intuitive exercise. The court must carefully review a party's bill of costs to determine what portion of the trial preparation falls under wasted time: Graziano v. Ciccone, 2017 ONSC 362.
17The overriding principals of fairness and reasonableness must be applied to each case: Boucher v. Public Accountants Council (Ontario).
Position of the Parties
18The Defendant and Ms. Geha argue that Mr. Salem has failed to participate meaningfully in the litigation process, and he has exhibited unreasonable conduct, including his non-compliance with court-ordered steps, his ongoing failure to provide settlement instructions to his lawyer at the two previous mediations and three pre-trial conferences, and his absence during the last pre-trial conference, resulting in the adjournment of the six-week jury trial.
19The Defendant further argues that a reasonable offer to settle was made to Mr. Salem in April 2024, yet he has failed to instruct his lawyer to respond to the offer to settle. It is submitted that Mr. Salem has been disengaged from the litigation for years and his behaviour has unnecessary lengthened the proceedings. Moreover, the Defendant takes the position that Mr. Salem's abrupt exit from the March 2025 mediation and his failure to attend the fourth pre-trial conference was improper and vexatious steps in the litigation process.
20It is argued by the Defendant and Ms. Geha that Mr. Salem's termination of Mr. Switzer, without promptly retaining new counsel, has further delayed the proceedings. As of the date of this hearing, Mr. Salem had not yet appointed a new lawyer or filed a Notice of Intention to Act in Person.
21Mr. Salem acknowledges that the trial date was vacated because of his failure to retain new counsel.
22Mr. Salem submits however that it is premature to award costs, without knowing the outcome of the trial or resolution. Mr. Salem is continuing in his efforts to retain new counsel.
23Furthermore, Mr. Salem says that the quantum of costs should only be determined when all the facts are known. Here, the alleged costs incurred by the Defendant and Ms. Geha may not all be thrown away. These alleged costs must be scrutinized and adjudicated, and such a process can only occur at the conclusion of the matter.
Analysis
24On March 31, 2022, r. 50.12(2) of the Rules came into force and gives the court the authority to order that costs be payable immediately where a pre-trial was unproductive for reasons related to a party's conduct.
25Failing to attend a pre-trial conference is unproductive. Terminating counsel shortly before the pre-trial conference, without promptly retaining new counsel or filing a notice of intention to act in person, is unproductive. Failing to prepare and engage in the pre-trial conference is unproductive. Taking unreasonable settlement positions during the pre-trial conference may be unproductive, but that is case specific.
26I was not present during the first three pre-trial conferences. I am not able to decide if these were unproductive but if they were, a request for costs should have been made at that time to the presiding judge. That said, I fail to see how the second pre-trial conference was unproductive when Doyle J. commented that fruitful discussions occurred.
27I am also not going to rule on Mr. Salem's alleged conduct during the two failed mediations. Under r. 24.1.12 of the Rules, an order for costs may be sought against a party who fails to attend a scheduled mediation. It is unknown if Mr. Salem's alleged lack of engagement and/or participation at those mediations would have qualified as a failure to attend and sufficient to award costs.
28It is undisputed that the fourth pre-trial conference was unproductive. Both Mr. Salem and his lawyer were not present. An order that costs be payable immediately is warranted. Preparation for this fourth pre-trial conference would have been minimal because there were two pre-trial conferences in December 2024 and a mediation at the end of March 2025. Also, counsel attendance was brief. Accordingly, I am of the view that costs in the amount of $1,000 for each of the Defendant and Ms. Geha is appropriate in the circumstances.
29Turning now to the costs thrown away. Although Mr. Salem has not yet served and filed a Notice of Change of Lawyer or Notice of Intention to Act in Person, Mr. Salem admits that he terminated his lawyer shortly before trial and that this is the reason why the trial was adjourned.
30The trial date was fixed on April 13, 2022. The matter did not resolve during the second or third pre-trial conference. With the trial date fast approaching, it is reasonable to expect that the Defendant and Ms. Geha were preparing for trial.
31I agree with Mr. Salem that the costs incurred will not all be thrown away. Assessing the costs thrown away is not an exact science. In reviewing the Bill of Costs of the Defendant and Ms. Geha, I make the following observations:
i. For the Defendant, 255.9 hours of trial preparation have been incurred. The description of work is general, without any details, leaving room to speculate as to the time incurred for a particular item of work. I note that there are six timekeepers (three lawyers and three clerks) that have docketed time. Invariably, with these many timekeepers, there are duplications of work.
ii. Some of the general entries in the Defendant's Bill of Costs do not pertain to trial preparation: draft updated mediation brief, correspondence with mediator, attendance at mediation, review and draft settlement correspondence.
iii. While some of the work undertaken by the Defendant's legal team may have to be updated and reviewed prior to trial, it cannot be said that the following is wasted: draft notices under the Evidence Act, R.S.O. 1990, c. E.23, draft the statement of law and the request to admit, draft trial preparation documents and update memoranda, update the Plaintiff's medical summary, draft will-say statements, and draft transcript summary.
iv. There are disbursements incurred by the Defendant that will be wasted, including the issuance and service of summonses to witness, and some searches that may need to be redone closer to trial.
v. Ms. Geha's counsel spent 35.9 hours of trial preparation, all incurred by one timekeeper. I recognize that Ms. Geha has a very different role, and it is expected that her counsel's trial preparation would be significantly less than counsel for the Defendant.
vi. Some of the time spent by counsel for Ms. Geha does not qualify as costs thrown away because it does not pertain to trial preparation: draft mediation brief, review other parties' mediation brief, attendance at mediation and pre-trial conferences.
vii. Similarly to the work by counsel for the Defendant, some of the work undertaken by Ms. Geha's counsel is not wasted and will only need to be refreshed and reviewed closer to the new trial date, including the review of the affidavit of documents and expert reports, and meeting with the client.
32Considering the above and in exercising my discretion, I am of the view that twenty percent of the costs and disbursements incurred by counsel for the Defendant and Ms. Geha represent costs thrown away and are payable by Mr. Salem. I find that it would be fair and just that these costs thrown away be paid once the trial decision has been rendered, including a decision on costs, or upon a full and final resolution of this matter, whichever comes first.
Disposition
33For the foregoing reasons, I make the following orders:
i. Pursuant to r. 50.12(2) of the Rules, Mr. Salem shall immediately pay costs to the Defendant in the amount of $1,000, all-inclusive.
ii. Pursuant to r. 50.12(2) of the Rules, Mr. Salem shall immediately pay costs to Ms. Geha in the amount of $1,000, all-inclusive.
iii. Costs thrown away payable by Mr. Salem to Ms. Geha and the Defendant shall be fixed at the all-inclusive sums of $2,293.34 and $11,413.12, respectively, representing twenty percent of the costs and disbursements incurred. These costs thrown away shall be paid once the trial decision has been rendered, including a decision on costs, or upon a full and final resolution of this matter, whichever comes first.
M. Smith J
Released: August 6, 2025