Ever Fresh Food Inc. v. Jamia Islamia Canada Ltd., 2013 ONSC 1800 (CanLII)

CITATION: Ever Fresh Food Inc. v. Jamia Islamia Canada Ltd., 2013 ONSC 1800

COURT FILE NO.: CV-12-5705-00

DATE: 20130326

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Ever Fresh Food Inc.

v.

Jamia Islamia Canada Ltd.

BEFORE: André J.

COUNSEL: R. Birken, for the Applicant

A. Farooq, for the Respondent

C O S T S E N D O R S E M E N T

[1] In this matter I granted the respondent’s motion to convert the application brought by Ever Fresh Food Inc. (Ever Fresh) into an action largely because there were material issues in dispute and because the evidentiary record was incomplete for a determination of the application. I invited both parties to make written submissions about costs.
[2] The respondent Jamia Islamia Canada Ltd. (Jamia Islamia) claims costs in the amount of $37,890.25 on a Partial Indemnity basis and $52,666.43 on a Full Indemnity basis. This amount, according to the respondent, is fair and reasonable, given that the matter necessitated three court appearances, the examination of four individuals and the filing of two facta. The respondent further submits that costs should be awarded on a substantial indemnity basis given that the entire proceeding was unnecessary.
[3] Mr. Answer Farooq, counsel for the respondent, was called to the Bar in 2002. His hourly rate is $400. His associate Hashim Dyed was called to the bar in 2012. His hourly rate is $250.00. The hourly rate of another associate, Mr. Omer Chaudhry, who was called to the Bar in 2013, is $200.
[4] The applicant seeks total costs for all court appearances and work performed from December 20 to March 4, 2013 of $19,170.18 on a Substantial Indemnity basis and $14,085.18 on a Partial Indemnity basis. Additionally, the applicant also seeks costs in the amount of $13,582.65 on a Substantial Indemnity basis and $9,667.20 on a Partial Indemnity basis, for the court appearance on November 27, 2012 and the work performed to December 18, 2012. The applicant, however, submits that costs to that date should be fixed at $5,000 given that the applicant’s court attendance on November 27, 2012 was caused by the respondent’s failure to retain counsel in a timely manner. This failure resulted in the matter having to be adjourned to December 18, 2012.
Analysis

[5] Section 57.01(1) of the Rules of Civil Procedure, R.R.O., 1990, O. Reg. 194, grants the court the discretion to award costs with the assessment of a number of factors including:
a. the principle of indemnity including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged, and the hour spent by the lawyer;

b. 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;

c. the amount claimed;

d. the apportionment of liability;

e. the complexity of the proceedings;

f. the importance of the issues; and

g. the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceedings.

[6] The applicant initially obtained, without notice, a Certificate of Pending Litigation against the respondent’s property and then served supporting affidavit materials on the respondent within the time guidelines established by the rules. The respondent did not retain counsel until the day before the matter was scheduled to be heard on November 27, 2012. Mr. Farooq then presented his responding material to the applicant’s lawyer on November 27, 2012 and on that date made a request for the Application to be converted into an Action. The matter was adjourned to December 18, 2012 with costs for the date reserved. On the latter date, the application was adjourned to March 4, 2013 to facilitate cross-examination of the parties’ witnesses. On the latter date, the court heard submissions from both parties and subsequently ruled in favour of the respondent.
[7] Undoubtedly, the respondent, as the successful party, is entitled to be awarded costs in the action. On the other hand, the costs must be fair and reasonable and must be in accordance with the factors enumerated in Rule 57.0191).
[8] A review of the respondent’s Bill of Costs suggests that the costs claimed is excessive for the following reasons:
1. The legal issue in this case was relatively uncomplicated;

2. The number of hours claimed by Mr. Farooq to prepare his responding materials for the November 27, 2012 court appearance are relatively high, some 35 hours;

3. The number of hours claimed by Mr. Farooq’s associate to prepare materials for the December 18, 2012 court appearance appears to be astronomically high;

4. The hourly rate of $250 charged by Mr. Dyed, Mr. Farooq’s associate is high, given that he was called to the Bar in 2012;

5. The claim for costs for 21 hours by Omer Chaudhry, another associate of Mr. Farooq, is excessive given that the research on application conversion to an action would already have been done. The $200 hourly rate for Mr. Chaudhry is excessive, given that he was only called to the bar in 2013; and

6. The costs of copying, organizing, binding and calls to client by an associate of Mr. Farooq, at $200 an hour, is excessive, given that there is no indication that this individual is a lawyer.

[9] The applicant claims costs of $5,000 for the November 27, 2012 court appearance on the basis that the matter was adjourned only because counsel for the respondent filed his responding material on the very date of the court appearance.
[10] On the other hand, Mr. Farooq sent a letter to Mr. Birken dated November 20, 2012, requesting an adjournment of the matter and advised him that his Application should be converted to an Action. There was no response to this request. To that extent, the respondent is entitled to claim reasonable costs associated with this court appearance.
Conclusion

[11] No costs will be awarded to the applicant, Ever Fresh Food Inc.
[12] Costs will be awarded to the respondent, Jamia Islamia Canada Ltd., in the amount of $18.945.14, inclusive of HST and disbursements, payable within 30 days of the date of this endorsement.
___________________________

André J.

DATE: March 26, 2013

CITATION: Ever Fresh Food Inc. v. Jamia Islamia Canada Ltd., 2013 ONSC 1800

COURT FILE NO.: CV-12-5705-00

DATE: 20130326

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Ever Fresh Food Inc.

v.

Jamia Islamia Canada Ltd.

BEFORE: André J.

COUNSEL: R. Birken, for the Applicant

A. Farooq, for the Respondent

COSTS ENDORSEMENT

André J.

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