Naqvi v. Adil, 2018 ONSC 2310 (CanLII) – Costs

CITATION: Naqvi v. Adil, 2018 ONSC 2310

COURT FILE NO.: 818/17

DATE: 20180410

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Syed Mansoor Ali Naqvi

Applicant/Moving Party

– and –

Quratulaien Adil

Respondent/Responding Party

O. Ogunniyi, for the Applicant/Moving Party

A. Farooq, for the Respondent

COSTS SUBMSSIONS RECEIVED AND READ: April 9, 2018

WOODLEY, S. J.

COSTS ENDORSEMENT

Overview

[1] The Applicant, Syed Mansoor Ali Naqvi (Mr. Naqvi), brought a motion for partition and sale of certain property registered in the name of the Respondent Quratulaien Adil (Mrs. Adil) and occupied by Mrs. Adil, her husband and children as their family home.
[2] Mr. Naqvi claimed to be entitled to the relief sought as a 50% beneficial owner of the property pursuant to a Trust Agreement and otherwise by resulting trust.
[3] For Reasons for Decision delivered on February 5, 2018 as Naqvi v. Adil, 2018 ONSC 857 (CanLII), I denied Mr. Naqvi’s request and dismissed the motion. I further ordered that subject to any offer made that affected costs, Mrs. Adil was entitled to her costs for the motion.
[4] These are my reasons for decision regarding costs.
The Law Relating to Costs

[5] The general principle is that a successful party is entitled to costs. It is accepted that this general principle should not be departed from unless there is good cause to do so.
[6] In the present case there is no good cause to depart from the general principle and Mrs. Adil is entitled to her costs. The only questions to be determined are the appropriate scale and amount of costs that should be applied to the proceeding.
Scale of Appropriate Costs

[7] It is within my discretion to award costs on a partial indemnity basis or a substantial indemnity basis and to order that such costs be fixed or assessed.
[8] Mrs. Adil seek costs fixed at $20,987.66, and alternatively, on a partial indemnity basis fixed at $15,522.81.
[9] The Applicant Mr. Naqvi submits that the costs sought are excessive and should be awarded on a partial indemnity basis as fixed by me.
Basis for Scale of Costs

[10] The general default order for costs is on a partial indemnity basis. The Ontario Court of Appeal in Murano v. Bank of Montreal, 1998 CanLII 5633 (ON CA), 41 O.R. (3d) 222, determined that increased cost awards are available but only appropriate in special and rare cases, including cases of fraud or other allegations of improper conduct seriously prejudicial to the character or reputation of a party which is found to be totally unfounded.
[11] In Aba-Alkhail v. University of Ottawa, 2013 ONSC 6070 (CanLII), 14 C.C.E.L. (4th) 133, the court found that unfounded allegations of improper conduct are capable of attracting substantial indemnity costs when the allegations are seriously prejudicial to the character or reputation of the individual.
[12] In the present case, the Applicant Mr. Naqvi alleged that Mrs. Adil breached the terms of the trust. Mr. Naqvi further alleged that Mrs. Adil obtained a second mortgage without authority and sought to “sell” the property without his knowledge or approval. In other words, the allegations were that Mrs. Adil acted in an underhanded and deceitful manner.
[13] The allegations made against Mrs. Adil were serious allegations of dishonest acts. These allegations were not borne out by the evidence.
[14] Of further note is the aggressive nature of the motion in view of the power imbalance and financial disparity that exists between Mr. Naqvi and Mrs. Adil.
[15] As noted by my Reasons for Decision, Mr. Naqvi has a Masters’ Degree in Philosophy, a PhD in Chemistry, is the president and CEO of MBBP, a business that purportedly has thousands of members, is a licensed insurance agent, and is the owner of a real estate brokerage company with 103 employees.
[16] Mrs. Adil, on the other hand, holds a B.A. in computer science from Karachi, Pakistan and is a stay at home mother to her two minor children.
[17] The motion, as presented to the court, could have determined all issues without a trial. The motion was aggressively pursued, contained serious allegations of dishonest acts, required thorough cross-examinations and factums, and placed Mrs. Adil and her family in serious jeopardy of losing their home at a time when Mrs. Adil was known to be in financial distress in part due to Mr. Naqvi’s failure to pay the amounts required by the Trust Agreement.
[18] In the circumstances I find that costs sanctions are appropriate and necessary. Costs are hereby awarded on the higher scale.
Quantum of Costs

[19] The question now arises as to the appropriate quantum of costs to award.
[20] Pursuant to Rule 57 of the Ontario Rules of Practice, I am required to fix costs in all but exceptional cases. This is not an exceptional case and I will fix the costs.
[21] Counsel for Mrs. Adil has provided a Bill of Costs together with a Detailed Time Section evidencing the date, hours spent, and services rendered which outlines costs incurred of $20,987.66.
[22] In exercising my discretion to determine the appropriate award of costs payable, I have specifically considered the issues of proportionality, complexity, and importance of the issues to the parties and have reviewed and assessed each item listed on the Bills of Costs.
[23] Based upon my review and in accordance with the overreaching principles I have determined that the costs sought by Mrs. Adil are completely reasonable and proportional in the circumstances.
Disposition

[24] Based on the foregoing, I hereby award costs to the Respondent Quratulaien Adil payable by the Applicant Syed Mansoor Ali Naqvi fixed at $20,987.66, inclusive of HST and disbursements, payable within 30 days of the date herein.

Justice Susan J. Woodley

Released: April 10, 2018