COURT OF APPEAL FOR ONTARIO
CITATION: Elguindy v. Elguindy, 2020 ONCA 739
DATE: 20201120
DOCKET: M51737 (C68046)
Fairburn A.C.J.O., Roberts and Coroza JJ.A.
BETWEEN
Emad Elguindy and Irene Elguindy
Plaintiffs
and
Afrodite Elguindy and Aziz Elguindy
Defendants (Moving Party/Responding Party)
Aziz Elguindy, acting in person
Mitchell J. Bates, for the responding party
Heard: in writing
On appeal from the costs order of Justice James R.H. Turnbull of the Superior Court of Justice, dated January 27, 2020, with reasons reported at 2018 ONSC 4584.
REASONS FOR DECISION
[1] The moving party, Aziz Elguindy, brings a motion for leave to appeal the trial judge’s costs order under s. 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[2] Mr. Elguindy had previously sought an extension of time to appeal from the trial costs order made in favour of his former spouse, the responding party, Afrodite Elguindy. By order dated March 2, 2020, Nordheimer J.A. dismissed Mr. Elguindy’s extension motion because he did not meet the criteria for an extension. In particular, he did not demonstrate that he had a bona fide intention to appeal within the requisite time. Nordheimer J.A. ordered Mr. Elguindy to pay Ms. Elguindy $1,500 in costs. These costs remain unpaid.
[3] Mr. Elguindy submits that the trial judge erred in granting costs to Ms. Elguindy. We disagree and dismiss his motion for leave to appeal.
[4] Mr. Elguindy and his former spouse were defendants in an action brought by Mr. Elguindy’s parents to recover loan and trust monies advanced to them. Funds from the sale of properties into which these monies had been placed were paid into court pending the outcome of the action. Mr. Elguindy’s parents achieved partial success in their action, as did Ms. Elguindy with her defence.
[5] The trial judge ordered that Ms. Elguindy, who was represented by counsel at the nine-day trial, be granted judgment for her partial indemnity costs of the action in the amount of $82,693.87, and that this amount be paid forthwith from the balance of funds in court to the credit of the action. The trial judge explained his order at para. 89 of his reasons:
Part of the reason this trial took so long was the failure of [Mr. Elguindy] to participate in a meaningful way, including providing production of bank records and other documents to assist the court. Furthermore, [Ms. Elguindy] has been partially successful resulting in some of the funds in court being available to [Mr. Elguindy and Ms. Elguindy] for allocation to them in their family law litigation. [Mr. Elguindy] will benefit directly or indirectly from that success. He therefore should bear part of its cost.
[6] It is well established that leave to appeal costs should only be granted sparingly where there are strong grounds upon which this court could find that the trial judge erred in exercising his discretion: Brad-Jay Investments Limited v. Village Developments Limited, 2006 CanLII 42636 (ON CA), 218 O.A.C. 315 (C.A.), at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92. We see none here.
[7] Although noted in default, Mr. Elguindy was a defendant in these proceedings and testified as a witness in support of his parents’ claim. He had obligations under the rules of procedure to provide relevant documents, which the trial judge found he had failed to do, and which he also found increased the length and cost of the trial. Along with these factors, the trial judge properly took into account Ms. Elguindy’s partial success in the action. Accordingly, it was open to the trial judge to make the order for payment of Ms. Elguindy’s costs from the funds in court.
[8] We therefore dismiss Mr. Elguindy’s motion for leave to appeal.
[9] Ms. Elguindy is entitled to her partial indemnity costs of this motion in the amount of $1,000 inclusive of disbursements and applicable taxes, which is in addition to the $1,500 costs order made by Nordheimer J.A. that remains unpaid. We decline to grant the other relief requested by Ms. Elguindy.
“Fairburn A.C.J.O.”
“L.B. Roberts J.A.”
“S. Coroza J.A.”