Court File and Parties

Court File No.: CV-24-00098056-0000 Date: 2026-03-16

Superior Court of Justice - Ontario

Re: Will Murray & Associates Criminal Defence Professional Corporation, Plaintiff

• and –

Nader Fakih, Defendant

Before: Associate Justice Kamal

Counsel: David Cutler, for the Plaintiff Kevin Caron and Sean Grassie, for the Defendant

Costs Endorsement

[1] These reasons on costs follow my decision dated February 3, 2025, reported at Will Murray & Associates v. Nader Fakih, 2026 ONSC 657.

[2] From the opening line, it should have been clear that the Court is expressing its disapproval of the Defendant's conduct.

[3] However, the parties were unable to agree on costs, so this is my decision regarding costs after receiving and reviewing the submissions of the parties.

[4] Subsection 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 grants the Court discretionary authority to award costs. Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 sets out the various factors that this Court may consider in addition to the result in the proceeding.

[5] The general principles applicable when determining costs are well settled. Costs are discretionary.

[6] The court must also consider the overall objective of fixing an amount that is fair and reasonable in the particular proceeding, having regard to the expectations of the parties concerning the quantum of costs. See Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (ON CA), at paras. 26 and 38.

[7] A costs assessment is not a mathematical exercise. See Davies v. Clarington (Municipality) et al., 2009 ONCA 722 at para. 52.

[8] The Plaintiff seeks costs on a substantial indemnity basis in the amount of $12,694, comprised of $10,525 (including HST) for legal fees before the hearing date, a counsel fee of $1,820 (including HST) for the same day preparation and attendance at the hearing, and $339 for the disbursement that was incurred.

[9] The Defendant takes the position that the amount of $5,000 is a reasonable amount for a 1-hour motion dealing with important and novel issues.

[10] The Defendant submits that he and his counsel had an honestly held belief that the Plaintiff's approach was not appropriate. It was not reprehensible or malicious of them to raise the privilege of the clients and seek the court's guidance on this issue.

[11] The Defendant also submits that even if the Defendant had delivered productions, this would not have eliminated the need for the court's guidance because the crux of the issue from the Defendant and his counsel's perspective was the parties' ability to use privileged materials in litigation that did not involve the privilege holders (the clients) and counsel's ability to review those materials.

[12] I do not agree. The motion did not deal with the ability to use the documents – it dealt with production.

[13] I do agree with the Defendant that the issues were important to the profession and public and that the issues were novel. However, this does not excuse the Defendant's conduct leading up to the motion.

[14] The Plaintiff was wholly successful on its motion.

[15] Elevated costs may be awarded, other than in Rule 49.10, in special circumstances pertaining to the conduct of the other party, described as "reprehensible, scandalous or outrageous", "behaving in an abusive manner", brought or defended proceedings devoid of merit, or unnecessarily running up costs. See Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 (S.C.C.); and Standard Life Assurance Co. v. Elliott (2007), 2007 CanLII 18579 (ON SC), 86 O.R. (3d) 221 (Ont. S.C.J.). Elevated costs are rarely awarded, granted only to mark the court's disapproval of the conduct of a party. See Mortimer v. Cameron (1994), III D.L.R. (4th) vii (S.C.C.). There is a distinction between hard-fought litigation that turns out to be misguided and malicious counter-productive conduct. Only the latter warrants sanction. See Davies v. Clarington (Municipality), 2009 ONCA 722.

[16] Substantial indemnity costs are appropriate "in rare and exceptional cases to mark the disapproval of the conduct of the party in the litigation". See Hunt v. TD Securities Inc. (2003), 2003 CanLII 3649 (ON CA), [2003] O.J. No. 3245, at para. 123.

[17] Conduct triggering elevated costs may encompass not only behavior during litigation, but also conduct giving rise to litigation. See Mortimer v. Cameron (1994), 1994 CanLII 10998 (ON CA), 17 O.R. (3d) 1 (C.A.), at p. 23, as cited in Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, at para. 43. See also Subramaniam v. Metamore Inc., 2024 ONSC 1902, at para. 5.

[18] Weighing the factors in subrule 57.01(1) and the principles in case law, I have considered the following:

a. There were no offers to settle exchanged by the parties with respect to the motion. However, the Plaintiff attempted to resolve the issues in a practical manner.

b. The Plaintiff's claim for costs is fair and reasonable given the research and materials provided.

c. The Plaintiff's costs are also fair and reasonable because they are consistent with the Defendant's Costs Outline ($11,618 on a substantial indemnity basis and $7,747 on a partial indemnity basis).

d. The motion raised a novel issue. However, the Plaintiff took a productive and practical approach to try to resolve the issue before the motion.

e. The conduct of the Defendant supports an award of costs on a substantial indemnity basis.

f. The Defendant's conduct added to a delay in the action.

[19] While the issues raised on the motion were novel and of professional importance, this does not excuse the Defendant's conduct leading up to the hearing. The Plaintiff attempted to resolve the discovery issues through practical means that would have avoided the motion. The Defendant did not produce even the non‑privileged documents he acknowledged could be produced.

[20] In my view, the Defendant's pre-litigation conduct was reprehensible, both in terms of his actions that led to this legal proceeding and his conduct that led to the motion. For example, the Defendant deposited client money into his personal account, and asked clients to pay him personally and in cash, as well as his disparaging comments that negatively impact the reputation of the profession and the system as a whole. The clearest example is the email the Defendant wrote in which he stated: "These peasants owe me money so I'm taking their bail money". This is the type of reprehensible conduct that led to the action.

[21] Furthermore, in my view, the Defendant attempted to hide behind privilege as a means to avoid production obligations. His position, which amounted to a blanket refusal, was not appropriate. This conduct, specifically on the discovery issues, led to this motion and was also reprehensible.

[22] This is more reprehensible because the Plaintiff attempted to find practical and reasonable solutions to the concerns raised by the Defendant. The solution would have avoided the need for this motion.

[23] The Court has repeatedly stated that advancing arguments that complicate and prolong the legal proceeding are not strategies that should be rewarded. See The Ottawa Hospital v. Hôpitel Inc., 2026 ONSC 596 at para. 13 and Thompson v. Carleton University, 2020 ONSC 3479, at para. 7.

[24] In my view, the Defendant's conduct complicated and prolonged the discovery issues unnecessarily.

[25] After weighing the factors in subrule 57.01(1), the principles in case law, and my considerations outlined above, I find that it is fair and reasonable to order costs as requested by the Plaintiff, in the amount of $12,694.

Associate Justice Kamal

DATE: March 16, 2026