Conlan J.

Three accused persons charged with first-degree murder and attempted murder brought a joint defence application for a stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms.

The application arose from events at Maplehurst Correctional Complex in late December 2023, where an Institutional Crisis Intervention Team (ICIT) deployment occurred on Unit 8 following an assault on a correctional officer.

The accused were not involved in the assault but were subjected to the ICIT operation, which involved strip-searches, physical restraints, extraction from cells, and deprivation of clothing for approximately 24-48 hours.

The court found that the ICIT deployment was undertaken solely for purposes of vengeance and punishment, not for any legitimate correctional purpose.

The court found multiple Charter violations under sections 7, 8, and 12, including deprivation of security of the person not in accordance with fundamental justice, unreasonable searches, and cruel and unusual treatment.

The court also found evidence of cover-up, collusion among witnesses, destruction or withholding of evidence, and false testimony by correctional staff.

The court granted a stay of proceedings on all charges, finding this to be an exceptional case where the integrity of the justice system would be better served by staying the proceedings than by proceeding to trial.

The appellant, a young person, appealed his conviction for sexual assault.

The Superior Court of Justice allowed the appeal, finding that the trial judge made material misapprehensions of evidence regarding the complainant's reason for visiting the appellant's house and the appellant's post-incident text messages.

These misapprehensions fatally flawed the trial judge's credibility assessment of the appellant.

Consequently, the court quashed the conviction and ordered a new trial, making it unnecessary to address the sentence appeal.

The Plaintiff, having successfully obtained summary judgment for $75,000 due to the Defendants' failure to close a property transaction, sought substantial indemnity costs of $42,272.20.

The court reviewed the Defendants' pleadings and found no unsubstantiated allegations of fraud against the Plaintiff, which was the basis for the substantial indemnity request.

Applying the principles of costs under Rule 57.01(1), the court declined to award substantial indemnity.

Instead, it exercised its discretion to award partial indemnity costs of $28,000, representing approximately two-thirds of the amount claimed, finding the claimed amount to be closer to full recovery rather than substantial indemnity. interesting_citations_summary: > This decision clarifies the threshold for awarding substantial indemnity costs, emphasizing that such an award requires serious and totally unfounded allegations that impugn the honesty, integrity, and reputation of the other side, as distinguished from general questions about the legitimacy of a subsequent sale.

It reinforces that costs awards are discretionary, should be fair, just, and reasonable, and bear a proportionate connection to the result, while also serving to partially indemnify successful litigants and discourage inappropriate conduct.

The court applied Rule 57.01(1) factors in determining the quantum of costs. final_judgement: "The Defendants shall pay to Shamim Rana Khan costs in the total sum of $28,000.00, all-inclusive, within thirty days of the date of this Endorsement." winning_degree_applicant: 2 winning_degree_respondent: 4 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2018 decision_number: 7486 file_number: "3314/17" source: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc7486/2018onsc7486.html" cited_cases: legislation: - title: "Rules of Civil Procedure, R.R.O. 1990, Reg. 194" url: "https://www.ontario.ca/laws/regulation/900194" case_law: - title: "Catalyst Capital Group Inc. v. Moyse, 2018 ONCA 283" url: "https://www.canlii.org/en/on/onca/doc/2018/2018onca283/2018onca283.html" keywords: - Costs - Substantial indemnity - Summary judgment - Rules of Civil Procedure - Rule 57.01(1) - Fraud allegations - Real estate transaction - Failed closing areas_of_law: - Civil Procedure - Costs - Real Estate Law --- # Court File and Parties **COURT FILE NO.:** 3314/17 **DATE:** 2018 12 13 **SUPERIOR COURT OF JUSTICE - ONTARIO** **RE:** Shamim Rana Khan, Plaintiff **AND:** Richard Mwakijale, Pauline Oyugi, Alice Mwakijale and Rosemary Njomvu, Defendants **BEFORE:** Conlan J. **COUNSEL:** Olubunmi Ogunniyi, Counsel for the Plaintiff Julius Omware, Counsel for the Defendants --- # Endorsement on Costs ## I. Introduction [1] The Plaintiff, Shamim Rana Khan (“Khan”), brought a motion for summary judgment against the Defendants, Richard Mwakijale, Pauline Oyugi, Alice Mwakijale, and Rosemary Njomvu. [2] The Defendants had agreed to purchase a property in Toronto from Khan.

There was a signed Agreement of Purchase and Sale (“Agreement”).

The Defendants failed to close the transaction.

Although Khan was able to later sell the property to someone else, she lost $75,000.00 in sale proceeds. [3] The Defendants, in their pleading, did not deny that they failed to close the transaction as per the signed and valid Agreement.

In a nutshell, they blamed the failed transaction on their real estate agent and his employer in, for example, permitting them to waive the financing condition, and the Defendants commenced a Third Party Claim accordingly. [4] Khan’s Motion was heard on October 4, 2018.

Extensive materials had been filed by Khan.

Nothing had been filed by the Defendants.

The Defendants requested yet another adjournment of the Motion, which request was denied for written reasons delivered by this Court on that day.

Khan’s Motion was granted, for oral reasons delivered at Court on October 4th.

Judgment was granted in favour of Khan in the principal amount requested, $75,000.00. [5] This Court ordered that written submissions on costs could be filed, and deadlines were outlined for the parties.

Khan has filed her submissions on costs.

The Defendants have filed nothing. ## II.

Khan’s Position on Costs [6] Khan requests costs on a “substantial indemnity” basis in the total amount of $42,272.20. [7] She focusses on the Defendants’ unsubstantiated allegations of fraud on the part of Khan as the reason for an award of costs on a substantial indemnity scale. ## III.

Basic Legal Principles on Costs [8] I must keep these things in mind in making the decision on costs: (i) the Plaintiff, as the successful party, is presumed to be entitled to some costs; (ii) quantum of costs is largely discretionary; (iii) the objective is to make an award that is fair, just and reasonable in all of the circumstances, including the prudent expectations of the losing side; (iv) costs should generally bear some proportionate connection to the result achieved; (v) cost awards are designed to partially indemnify successful litigants, encourage settlement, and discourage or sanction inappropriate conduct by litigants; and (vi) in determining the quantum of costs, I should consider the various factors outlined in [Rule 57.01(1) of the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194). ## IV.

Decision [9] I have reviewed the Defendants’ pleadings that are contained in the Motion Record that was before this Court on October 4, 2018.

There is nothing contained therein with regard to allegations of fraud against Khan. [10] I do recall the issue of the legitimacy of the ultimate sale of the property by Khan to a third party having been raised by the Defendants during the course of the litigation.

But that does not bring this case within the four corners of the decision relied upon by Khan, [Catalyst Capital Group Inc. v. Moyse, 2018 ONCA 283](/on/onca/2018/283), [2018] O.J. No. 1523 (C.A.). [11] In that case, unlike ours, there were very serious and totally unfounded allegations pleaded and maintained throughout the litigation which sought to impugn the honesty, integrity, and reputation of the other side. [12] Thus, I decline to award to Khan her costs on a substantial indemnity scale. [13] Seeing nothing excessive about the time spent or the hourly rate charged by Khan’s counsel, and seeing nothing unreasonable contained in the Costs Outline filed, this Court exercises its discretion to reduce the award of costs in favour of Khan from the $42,272.20 claimed to an even $28,000.00, all-inclusive. [14] I note from a careful review of the Costs Outline that the $42,272.20 figure, although it is described in Khan’s costs submissions as being recovery on a “substantial indemnity” scale, appears really to be full recovery.

That is further reason to discount the award to something in the neighbourhood of two-thirds recovery, which the $28,000.00 figure represents. [15] This Court orders that the Defendants shall pay to Khan costs in the total sum of $28,000.00, within thirty days of the date of this Endorsement. --- Conlan J. Date: December 13, 2018

Former partners in a private school brought an action alleging breach of a buy‑out agreement following their resignation from the partnership.

The remaining partner asserted a set‑off, alleging the former partner breached a non‑solicitation and good faith clause in the partnership agreement by interfering with a student’s enrolment.

The court held the defendant failed to prove, on a balance of probabilities, that the plaintiff solicited, enticed, or interfered with the student or breached the partnership agreement.

As the alleged breach was unproven, the claimed set‑off failed and the plaintiffs established their entitlement to amounts owing under the buy‑out agreement.

Judgment was granted for damages, interest under the Courts of Justice Act, and costs.

Following a lengthy family law trial, the successful party sought over $234,000 in costs.

The court applied Rules 18 and 24 of the Family Law Rules and considered settlement offers, trial success, litigation conduct, and the reasonableness of the bill of costs.

Although the successful party beat her offer to settle and was entitled to substantial recovery, the court reduced the claimed amount, including reducing junior counsel trial time by 50% for fairness.

The court ultimately fixed costs at $185,000 all-inclusive and ordered that the award be enforced through the Family Responsibility Office as a lump sum spousal support order due to the opposing party’s history of non‑compliance with court orders.

Following a family law trial involving child support, section 7 expenses, and distribution of proceeds from the matrimonial home, the court determined the issue of costs.

The successful party sought substantial indemnity costs, arguing that the opposing party behaved unreasonably during the litigation and that a settlement offer had been exceeded at trial.

The court rejected the claim for substantial indemnity costs, finding that the self‑represented party generally conducted himself reasonably, except for some disclosure deficiencies, and that the settlement offer had not been properly placed before the court under the Family Law Rules.

After reviewing the bill of costs and the overall circumstances, the court awarded a reduced lump‑sum costs amount payable from the opposing party’s share of the sale proceeds of the matrimonial home.