2011 ONSC 100, 2011 ONSC 100

CITATION : Kais v. Abu Dhabi Education Council et al, 2011 ONSC 100 COURT FILE NO.: 09-44476 DATE: 2010-09-02 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Rana Kais, Plaintiff/Responding Party AND: Abu Dhabi Education Council, Taoufiq Bouhlal and Shazia Khalid, BEFORE: Master Pierre Roger COUNSEL: Alan Riddell, for the Plaintiff/Responding Party Ruba El-Sayegh, for the Defendants/Moving Parties D E C I S I O N O N C O S T S [ 1 ] This motion was of moderate complexity and involved a moderate amount of research.

The issues raised were important to the parties. [ 2 ] The Plaintiff made a formal offer to settle in writing on August 25, 2010, by which she offered to settle this motion by the Defendants consenting to an order dismissing their motion without costs. Further, the Plaintiff points out that the Defendants initially raised the issue of the State Immunity Act , which they later abandoned but which forced the Plaintiff to incur additional research costs. The Plaintiff seeks costs on a substantial indemnity basis. [ 3 ] I find that this was a reasonable case in which to bring such a motion.

The Defendants had legitimate concerns and raised these concerns in the context of this motion. It was reasonable to bring this motion and it was reasonable to proceed with this motion. [ 4 ] Having regard to the importance of the issues to the parties and the evidence, I find that the offer, in this case, is not sufficient for costs to be payable on a substantial indemnity basis. Otherwise, costs could be payable on a substantial indemnity basis as soon as one made an offer for the dismissal of the motion and the motion was decided in his/her favour.

Such an offer could, in the right case, have the desired effect of increasing costs to substantial indemnity if, for example, it was not reasonable to proceed with the motion following disclosure of the evidence but this is not such a case. [ 5 ] For these reasons, I find that costs should be payable on a partial indemnity basis. [ 6 ] I have reviewed the costs outline filed by both parties. The Plaintiff seeks over 230 hours in time spent for preparing for this motion, cross-examination, attendance and for preparing supplementary submissions.

By comparison, the Defendants seek approximately 95 hours. [ 7 ] The materials filed on this motion are not extensive and the cross-examinations were limited to two rather brief cross-

examinations of the Defendants’ witnesses.

Overall, I find that the time spent is excessive. [ 8 ] Considering by comparison the time spent by the Defendants but allowing a reasonable margin for the importance of these issues to the Plaintiff, while balancing the principle of indemnity against other factors, including reasonable expectations of the parties, I fix fees on a partial indemnity basis in the amount of $24,000.00 for this motion plus GST at ​​​13% (as I cannot allocate the different rates), which is approximately 150 hours of time for the various professionals who have worked on this file, for a total for fees of $27,120.00 (inclusive of GST). [ 9 ] Disbursements are allowed as claimed at $12,446.90. [ 10 ] Consequently, costs of $39,566.90 are payable by the Defendants to the Plaintiff by February 28, 2011. ___________________________ Master Pierre Roger DATE: January 6, 2011