Zafar v Muslim Association of Calgary, 2021 ABQB 710

Court of Queen’s Bench of Alberta Citation: Zafar v Muslim Association of Calgary, 2021 ABQB 710 Date: 20210907 Docket: 2001 12754 Registry: Calgary Between: Ghazanfar Zafar Applicant - and - Muslim Association of Calgary, Muslim Community Foundation of Calgary, and Mohamed Charanek Respondents _______________________________________________________ Reasons for Decision in Relation to Costs of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Background [ 1 ] Pursuant to Reasons for Decision issued on April 13, 2021, Mr.

Zafar’s Application for the appointment of an interim receiver, and other relief, was dismissed. The Reasons confirmed that the Respondents are entitled to costs and specified that, if the parties were unable to agree on the quantum of costs, the matter should be referred to the Review Officer for determination, unless any

costs issue was outside the jurisdiction of the Review Officer. [2] The Respondents advised that the parties were unable to agree on costs. Furthermore, as the Respondents were seekingsolicitor and own client costs, the Review Officer did not have jurisdiction to determine the appropriate quantum of costs.

Position of the Parties [3] The Respondents submit that they are entitled to full indemnity, solicitor and own client costs because: • the purpose of the Application was to circumvent the Order of Justice Jeffrey which had been granted on November 16, 2020; • the Application was a further attempt to thwart the will of the majority of the Respondent organizations (the “Organizations”) andto prevent them from investigating Mr.

Zafar’s alleged wrongful acts or from pursuing a civil claim against him; • Courts should take steps to censure such collateral attacks on court orders and improper use of court proceedings used to advanceulterior motives and the cost award sought by the Respondents would further this objective; • the Application was legally and factually hopeless, because 1) Mr.

Zafar lacked standing and 2) he provided no evidence that thecontracts he sought to have the Court order be paid had been duly authorized; • the Application was brought on an urgent basis, as was the last minute application for intervenor status, which complicated andimposed extremely tight deadlines, thereby increasing the Respondents’ costs; and • Mr. Zafar made serious allegations of impropriety and financial mismanagement which impugned the character, competence andintegrity of board members of the Organizations. [4] Mr. Zafar denies any misconduct or inappropriate behaviour on his part.

He submits that he brought the Application in goodfaith because of his concerns related to the best interests of the Organizations. The Application was brought in an attempt to protectvarious groups within the Muslim community in Calgary, their charitable status, and the general well-being of the Calgary Muslimcommunity. [5] Rather than constituting a collateral attack on Court Orders, Mr. Zafar was alleging that the Respondents were in breach ofthe Orders.

He submits that his concerns regarding the election and governance of the Calgary Muslim community has not been finallydetermined and that his allegations in relation thereto may ultimately prove to be well-founded. He therefore submits that the appropriatequantum of costs should be as determined under

Schedule C of Column 1. Applicable Legal Principles [6] The parties agree that Rule 10.33 of the Alberta Rules of Court governs. Subsection (1) sets up the factors that the Courtmay consider in determining the issue of costs.

Subsection (2) sets out additional factors which may be considered when the Court isdetermining whether to impose, deny or vary an amount. [7] Partial or full indemnity costs may be awarded where a litigant has engaged in “reprehensible, scandalous or outrageousconduct” (Young v Young (SCC), [1993] 4 SCR 3). [8] The Respondents cite Brown v Silvera (2010 ABQB 224), as providing examples of when enhanced costs are appropriate.

InBrown, the Court referred to a number of other cases in which enhanced costs had been awarded for a variety of reasons. [9] The Respondents submit that the case of Trinity Christian School Association v Schienbein, 2021 ABQB 218, isparticularly relevant in this case, as it also involved a fight for control of a non-profit organization. In that case, Justice Renke concludedthat solicitor-client costs were justified on the basis of unreasonable litigation conduct, the imposition of a short timeline to respond to anapplication, and the position taken having complicated the application itself.

Analysis [10] On the basis of the evidence before this Court, I am satisfied that the Respondents are entitled to more than

Schedule C costs.The issue is the extent of the enhancement to which they are entitled. [11] Mr.

Zafar’s lack of standing, the lack of evidence to support his request that certain contracts had been authorized and ought tobe paid, the urgent nature of the Application and resulting extremely tight deadlines, and the serious allegations of impropriety andfinancial mismanagement which remain unsupported by evidence all weigh in favor of an award of enhanced costs. [12] In light of the lawsuits that have been initiated against him, and the nature of the allegations which have yet to be provenagainst him, it may well be an appropriate case for solicitor and own client costs if the allegations are proven and the lawsuits againstMr.

Zafar are successful. Such an outcome would provide compelling evidence in support of the Respondents’ suggestion regarding Mr.Zafar’s motives in bringing this Application and would negate his suggestion that he is acting in good faith out of his concern for thewell-being of various members and groups within the Calgary Muslim community. [13] In light of the current status of Mr. Zafar’s allegations against the current directors who control the Organizations, and thelawsuits which have been commenced against him in connection with actions alleged to have been taken by him while he was in control

of the Organizations, it is premature to determine the full extent of the costs which might be payable by Mr. Zafar to the Respondents. [ 14 ] At this time, I am satisfied that the evidence before the Court supports an award which is two times the amount determined under Column 1 of

Schedule C. This award, however, is without prejudice to the Respondents’ ability to seek further costs in connection with this Application once there has been either 1) a determination in relation to the allegations and claims currently outstanding against Mr.

Zafar and/or allegations or claims concerning the entitlement to payment of those matters which were the subject matter of this Application, or 2) there is additional evidence available to permit a better assessment of them. [ 15 ] To be clear, there will be an immediate award in favor of the Respondents, but the Respondents may bring application for further costs in connection with this Application in the future if the evidence in the related proceedings assists in establishing, either directly or by inference, that Mr.

Zafar’s actions in bringing this Application can reasonably be viewed as an attempt to circumvent Justice Jeffrey’s Order, to thwart the will of the majority, to prevent the ongoing investigation of Mr. Zafar’s alleged wrongful acts, and/or to prevent or at least delay the proceedings that have been commenced against him. [ 16 ] The award of costs resulting from this Decision is to be viewed as an interim award only, subject to potential increase as provided herein. Heard by Written Submissions on the 14 th and 28 th days of May, 2021. Dated at Calgary, Alberta this 7 th day of September, 2021. D.L.

Shelley J.C.Q.B.A. Appearances: Grant Vogeli, QC and Jonathan Selnes Lawson Lundell LLP for the Applicant Predrag Anic and Halley Auger Miles Davidson LLP for the Respondents Aidan Henderson Caron & Partners LLP for the N. Amjadi and A. Adnan (Teachers) Mihai Tomos Fasken for the Islamic Association of Northwest Calgary Vanessa Allen MNP Ltd

for the Interim Receiver