Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220121 DOCKET: C67057, C67062, C67364 & C67376

Hourigan, Huscroft and Coroza JJ.A.

BETWEEN

DOCKET: C67057 Extreme Venture Partners Fund I LP, EVP GP Inc., Ravinder Kumar Sharma, Imran Bashir and Kenneth Teslia Plaintiffs/Defendants by Counterclaim (Respondents)

and

Amar Varma, Sundeep Madra, Varma Holdco Inc., Madra Holdco Inc., Chamath Palihapitiya, El Investco I Inc., Extreme Venture Partners Annex Fund I LP, and EVP GP Annex Fund I Inc. Defendants/ Plaintiffs by Counterclaim (Appellants / Respondents)

AND BETWEEN:

DOCKET: C67062 Extreme Venture Partners Fund I LP, EVP GP Inc., Ravinder Kumar Sharma, Imran Bashir And Kenneth Teslia Plaintiffs/Defendants by Counterclaim (Respondents/Appellants by Cross-Appeal)

and

Amar Varma, Sundeep Madra, Varma Holdco Inc., Madra Holdco Inc., Chamath Palihapitiya, El Investco I Inc., Extreme Venture Partners Annex Fund I LP, EVP GP Annex Fund I Inc., Cassels Brock & Blackwell LLP, and Seven Hills Group LLC Defendants/Plaintiffs by Counterclaim (Appellants / Respondents by Cross-Appeal)

AND BETWEEN:

DOCKET: C67364 Extreme Venture Partners Fund I LP, EVP GP Inc., Ravinder Kumar Sharma, Imran Bashir And Kenneth Teslia Plaintiffs/Defendants by Counterclaim (Respondents)

and

Amar Varma, Sundeep Madra, Varma Holdco Inc., Madra Holdco Inc., Chamath Palihapitiya, El Investco I Inc., Extreme Venture Partners Annex Fund I LP, EVP GP Annex Fund I Inc., Cassels Brock & Blackwell LLP, and Seven Hills Group LLC Defendants/Plaintiffs by Counterclaim (Appellants)

AND BETWEEN:

DOCKET: C67376 Extreme Venture Partners Fund I LP, EVP GP Inc., Ravinder Kumar Sharma, Imran Bashir And Kenneth Teslia Plaintiffs (Respondents)

and

Amar Varma, Sundeep Madra, Varma Holdco Inc., Madra Holdco Inc., Chamath Palihapitiya, El Investco I Inc., Extreme Venture Partners Annex Fund I LP, EVP GP Annex Fund I Inc., Cassels Brock & Blackwell LLP, and Seven Hills Group LLC Defendants (Appellants)

Counsel: Jonathan Lisus, Crawford Smith, Nadia Campion, Vlad Calina and John Carlo Mastrangelo, for the appellants Amar Varma, Sundeep Mandra, Varma Holdco Inc. and Madra Holdco Inc. Andrew Brodkin, David E. Lederman and Daniel Cappe, for the appellants Chamath Palihapitiya and El Investco 1 Inc. Won J. Kim, Megan B. McPhee, Aris Gyamfi and Rachael Sider, for the respondents

Heard: in writing

On appeal from the orders of Justice Barbara A. Conway of the Superior Court of Justice, dated May 14, 2019, July 24, 2019, and February 4, 2020, and the judgment of Justice Barbara A. Conway of the Superior Court of Justice, dated May 14, 2019.

Endorsement

[1] On December 1, 2021 we released Reasons for Decision wherein the Respondents − Extreme Venture Partners Fund I LP, EVP GP Inc., Ravinder Kumar Sharma, Imran Bashir, and Kenneth Teslia − were successful in resisting an appeal commenced by Amar Varma and Sundeep Madra, along with their respective holding companies, Varma Holdco Inc. and Madra Holdco Inc (“Madra Holdco”), collectively the "Varma/Madra Appellants." They were also successful on the appeal commenced by Chamath Palihapitiya and his holding company, El Investco 1 Inc. collectively the “Palihapitiya Appellants”. In addition, the Respondents succeeded on their cross-appeal.

[2] We invited the parties to make written submissions on the issue of costs if they were unable to reach an agreement. All parties filed written submissions and on January 6, 2022 we awarded the Respondents their costs of the appeals in the total amount of $300,000. The Palihapitiya Appellants and Varma/Madra Appellants were each ordered to pay $150,000 of the total costs award.

[3] On January 10, 2022, counsel for the Respondents wrote to the court and sought a variation of the trial costs award. Counsel submitted that because his clients succeeded on their cross-appeal, they beat their Rule 49 settlement offer and were entitled to a costs award on a higher scale: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Counsel for the Palihapitiya Appellants, writing on behalf of all the appellants, opposed the request.

[4] Even assuming we have the authority to vary our decision, we decline to do so. The Respondents did not appeal or seek leave to appeal the trial costs, even though they knew that they would beat their Rule 49 settlement offer if they succeeded on their cross appeal: Rules of Civil Procedure. Further, the Respondents did not include a request to vary the trial costs award in their notice of cross-appeal or in their supplementary notice of cross-appeal. Finally, the Respondents did not raise the issue in oral argument or in their written submissions on costs.

[5] The request for a variation is denied.

“C.W. Hourigan J.A.” “Grant Huscroft J.A.” “S. Coroza J.A.”