Executive Summary: Key Legal and Evidentiary Issues

• Costs jurisdiction engaged under Courts of Justice Act s.131(1) and Rule 57, with specific authority for immediate costs for unproductive pre-trials under Rule 50.12(2).

• Non-attendance at a fourth pre-trial and late termination of counsel rendered the session unproductive and justified immediate costs.

• Scope and timing of “costs thrown away” assessed as a discretionary, non-precise exercise, fixed here at 20% of incurred costs and disbursements.

• Distinction drawn between truly wasted trial-prep steps and work that will carry forward to the re-scheduled trial.

• Mediation conduct not adjudicated for costs under Rule 24.1.12 on the record available; earlier pre-trials did not clearly qualify as unproductive.

• Proportional, fairness-based approach applied, awarding modest immediate costs and deferring thrown-away costs until post-trial or final resolution.

Facts of the case
Two plaintiffs, Hassan Salem and Danya Geha, sued defendant Alphonso D. Reid arising from a December 5, 2015 motor vehicle accident. Ms. Geha advanced a Family Law Act s.61 claim. A Statement of Claim issued September 8, 2017. Multiple settlement efforts occurred: a mediation in May 2021 and pre-trial conferences in September 2021 and December 2024 (two sessions), followed by a second mediation on March 28, 2025. A six-week jury trial had been set to start April 17, 2025, with a fourth pre-trial fixed for April 4, 2025. Mr. Salem terminated his lawyer shortly before that pre-trial; neither he nor counsel attended. The court vacated the April 2025 trial.

Procedural posture and parties’ positions
The court convened a costs hearing to determine whether Mr. Salem should pay costs for the unproductive fourth pre-trial and for the adjournment-driven “costs thrown away.” The defendant sought $50,000 and Ms. Geha $11,000. They argued Mr. Salem failed to participate meaningfully, ignored settlement instructions, exited a March 2025 mediation, and caused the trial adjournment by firing counsel without promptly retaining new counsel. Mr. Salem acknowledged the adjournment flowed from not having counsel but submitted that fixing costs was premature and that only some alleged costs were truly wasted.

Issues in dispute
The central question was whether, and to what extent, costs should be awarded against Mr. Salem for the unproductive fourth pre-trial and for trial-preparation work rendered wasted by the adjournment.

Legal principles
Costs are discretionary under Courts of Justice Act s.131(1) and guided by Rule 57. Rule 50.12(2) authorizes immediate costs where a pre-trial is unproductive due to a party’s conduct. The court emphasized that calculating “costs thrown away” is not an exact science; it is a fairness-driven, intuitive assessment, distinguishing work that must be redone from work that carries forward. The court referenced Prabaharan v. RBC General Insurance Co. on the purpose of pre-trials and wasted time when parties fail to attend, Graziano v. Ciccone on the speculative nature of assessing thrown-away costs, and Boucher v. Public Accountants Council (Ontario) on the overarching principles of fairness and reasonableness. The court declined to treat earlier pre-trials or mediations as definitively unproductive on this record, and noted Rule 24.1.12 addresses mediation attendance specifically.

Analysis
The fourth pre-trial was undeniably unproductive because neither Mr. Salem nor his counsel attended after counsel was terminated without replacement. Immediate, modest costs were warranted for that discrete event, recognizing limited incremental preparation given recent December 2024 pre-trials and a March 2025 mediation. For the adjournment-related “costs thrown away,” the court reviewed the defendant’s and Ms. Geha’s bills. It found overbroad and duplicative time entries on the defense side (six timekeepers) and identified categories not tied to trial preparation (e.g., mediation activities). The court carefully separated work likely to be reusable at the eventual trial—such as Evidence Act notices, statements of law, requests to admit, trial prep documents, medical summaries, will-say statements, and transcript summaries—from disbursements and steps more likely to be wasted (e.g., summons service and certain searches that will need refreshing). Ms. Geha’s more modest single-timekeeper prep was assessed similarly, excluding mediation and pre-trial attendances and recognizing that much review work would simply need updating. Balancing these factors, the court exercised discretion to fix thrown-away costs at 20% of incurred costs and disbursements.

Outcome
The court ordered immediate all-inclusive costs of $1,000 to the defendant and $1,000 to Ms. Geha for the unproductive fourth pre-trial. It further fixed “costs thrown away” at $11,413.12 (defendant) and $2,293.34 (Ms. Geha), representing 20% of their respective costs and disbursements, payable after the trial decision (including any costs ruling) or upon full and final resolution, whichever occurs first. This was a procedural costs ruling, not a final judgment on the accident claims. For the purposes of this motion, the defendant and Ms. Geha were the successful parties, as the court granted them both immediate costs and deferred “costs thrown away” against Mr. Salem.