COURT FILE NO.: 67/09

DATE: 20091001

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: RAJESWARA VEERELLA Plaintiff/Appellant

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MUHAMMAD EHSAN KHAN, MUHAMMAD ZAK KHAN, PAUL LEBO, SAUL GREENGLASS, TRUDY RICHMOND AND PEARL LEBO Defendants/respondents

BEFORE: JUSTICE JENNINGS

COUNSEL: Susan Chapman for the Plaintiff (Appellant) Harold Rosenberg for the Respondents Paul Lebo, Greenglass, Richmond and Pearl Lebo Theodore Ross for the Defendants (Respondents) Khan

HEARD AT TORONTO: SEPTEMBER 17, 2009

E N D O R S E M E N T

[1] On September 17, 2009, I gave my reasons for my order dismissing this appeal from the order of the Master dismissing the plaintiff’s application to add a new party plaintiff. Pursuant to the plaintiff’s supplementary notice of appeal I granted leave to appeal the Master’s order as to costs but dismissed the appeal therefrom.

[2] I have now considered the parties’ written submissions regarding the costs of the motions before me.

[3] I accept the submissions of the parties that the issues raised were somewhat complex and novel. I have taken into account that approximately 3 days before the day on which the appeal was first scheduled to be heard, the plaintiff filed a fresh factum in which he withdrew his position that he concurred with the Master that it was no longer possible to rely on the doctrine of special circumstances to extend the limitation at issue. That amendment required an adjournment for the filing of the responding facta and material. Costs of that appearance on June 22 before Janet Wilson J. were reserved to me.

[4] The matter took about 2 hours to argue. Counsel for the respondents other than the Khans submitted a cost outline requesting $19,855.80 including $831.60 for disbursements and $2,000 counsel fee for the Appearance on the appeal.

[5] Counsel for the Khan respondents submitted a cost outline requesting $15,427.14 for disbursements and $2,000 counsel fee on the appeal.

[6] Although the main burden for the respondents was shouldered by Mr. Rosenberg for the other than Khan respondents, Mr. Ross for the Khans prepared for the appeal, attended upon it and made brief but helpful submissions in addition to those made by Mr. Rosenberg.

[7] Ms. Chapman on behalf of the appellant submits that taking into account the factors of novelty and complexity the costs award to each of the respondents should be $5,000. I have some difficulty with that submission because the cost outline which she filed on behalf of the appellant, assuming the appeal was successful, claimed fees and disbursements of $27,714.90.

[8] From my review of the reasons given by the learned Master, much of the submissions made to me were also made to the Master and that would indicate that preparation for the appeal might not warrant the expenditure of the hours put in to prepare for the appeal.

[9] Bearing in mind the factors to which I have referred, the importance of the issue to the parties, and the reasonable expectations of the parties as to what the costs of a relatively brief appearance in this court on appeal from the Master might be I am driven to the conclusion that the costs claimed by the successful respondents are excessive.

[10] Under the circumstances, I believe that $10,000 inclusive to each group of the successful respondents would be fair and reasonable and I fix costs in that amount.

JENNINGS J.

DATE: October 1, 2009