Aramesh v. Azimi-Dehdezi, 2025 ONSC 612
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALIREZA ARAMESH and SORAYA AZIMI DEHDEZI, Plaintiffs
- AND -
FARSHAD AZIMI-DEHDEZI and SUSAN BEMAN, Defendants
BEFORE: Justice L. Shin
COUNSEL: Arash Jazayeri, counsel for the Plaintiffs
Edward H. Merifield, counsel for the Defendants
HEARD: In writing
ENDORSEMENT RE COSTS
1In my endorsement dated December 16, 2024, I granted the plaintiffs’ motion seeking leave for the issuance of a certificate of pending litigation (“CPL”) on 52 Breckonwood Crescent, Markham, Ontario (the “Property”). The sole registered owner of the Property is the defendant Farshad Azimi-Dehdezi. This motion was heard on November 27, 2024.
2In the endorsement, I urged the parties to resolve the issue of costs, failing which I invited written submissions. The plaintiffs provided written submissions, which I have reviewed. While the defendants have not provided written submissions, I take into account the position defendants’ counsel provided to plaintiffs’ counsel in an email dated Monday December 23 2024 which was attached to the plaintiffs’ costs submissions.
3The plaintiffs seek costs on a substantial indemnity basis in the amount of $16,488.96 inclusive of HST and disbursements, payable within 14 days. This amount includes costs not only in relation to this motion, but also in relation to the defendants’ abandoned cross motion for security for costs. Costs on a partial indemnity basis are $12,705.72 according to the plaintiffs’ costs outline.
4The plaintiffs made offers to settle their CPL motion. First on September 24, 2024, by verbally proposing that the defendants agree to consent to an order to not sell or encumber the Property. Second on November 20, 2024, proposing that the defendants agree to consent to the CPL on a no costs basis, with this offer expiring at noon on November 25, 2024.
5The plaintiffs seek their costs in relation to the defendants’ abandoned cross motion for security for costs pursuant to r. 37.09(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194. On March 20, 2024 the defendants served their cross motion record. The parties’ affidavits dealt with both motions and the examinations on the affidavits were combined with the examinations for discovery. The defendants abandoned their motion for security for costs on November 19, 2024.
6Lastly, after I released my decision on the CPL motion, the plaintiffs offered to settle costs at $15,000 inclusive of HST and disbursements on December 22, 2024.
7The defendants’ position on costs, as found in their counsel’s December 23, 2024 email to plaintiffs’ counsel, is that the plaintiffs were advised well in advance that they were not proceeding with the security for costs cross motion; the plaintiff’s motion was straightforward and unnecessary; costs in the amount of $5,000 to $7,500 is more appropriate; costs should be in the cause; and costs should not be payable before the hearing of the substantive issues.
8Fixing costs is a discretionary decision under s. 131 of the Courts of Justice Act, R.S.O. 1990, c C.43. The factors relevant to the exercise of discretion are listed in r. 57.01 and include:
the result in the proceeding;
any offer to settle or to contribute made in writing;
the principle of indemnity including 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;
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;
the complexity of the proceeding; and
the importance of the issues.
Moreover, r. 57.01(1)(f) provides that the court may also consider “any other matter relevant to the question of costs.”
9With respect to abandoned motions, r. 37.09(3) provides “a responding party on whom the notice of motion was served is entitled to the costs of the motion forthwith unless the court orders otherwise.”
10I am cognizant of the defendant’s position; however, no basis is provided as to why $5,000 to $7,500 is more appropriate or why costs should be in the cause, in particular given the offers to settle that have been made.
11Neither of the plaintiffs offers to settle the CPL motion fit within the r. 49.10 costs consequences related to offers to settle (the first was not made in writing and the second expired before the commencement of the hearing). Regardless, I take these offers into consideration and award costs slightly above a partial indemnity basis.
12For these reasons, I fix costs of the CPL motion and the abandoned cross motion at $13,500 inclusive of HST and disbursements and order the defendants to pay that amount to the plaintiffs within 30 days of this order.
Justice L. Shin
Date: January 28, 2025