COURT FILE NO.: 340/09 (07-CV-344269 PD3)

Heard: 20090925

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: BEARD WINTER LLP, Plaintiff -and- KERSASP SHEKHDAR, Defendant

-and-

COURT FILE NO.: 340/09 (08-CV-347902PD3)

RE: KERSASP SHEKHDAR, Plaintiff -and- BEARD WINTER LLP and ROBERT C. HARASON, Defendants

BEFORE: Justice D. Aston

COUNSEL: Robert C. Harason, for Beard Winter LLP and Robert C. Harason Kersasp Shekhdar – Self-Represented

E N D O R S E M E N T

[1] Mr. Shekhdar brings this motion for leave to appeal the order of Campbell J. dated October 30, 2008 and the subsequent decision on costs. That order dismissed Mr. Shekhdar’s appeal of the interlocutory order of Master Dash made on May 5, 2008. The order of Campbell J. and the underlying decision of the Master are both interlocutory in nature (as recognized by the Court of Appeal decision in this case dated July 9, 2009) so the matter proceeds under s. 19(1)(b) of the Courts of Justice Act, necessitating leave to appeal and triggering the application of Rule 62.02 The test under Rule 62.02(4) reads as follows:

Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[2] Mr. Shekhdar also seeks an extension of time for his motion for leave to appeal, if necessary.

Ruling on Adjournment Request and Materials Filed

[3] The hearing of the motion was arranged weeks in advance. Mr. Shekhdar was granted permission to make submissions by teleconference. Other directions from the Administrative Justice of the Divisional Court, Swinton J., in her letter dated August 17, 2009, included deadlines for filing material

[4] Evidently both sides have misunderstood the directions for filing material. Mr. Shekhdar apparently thought he only had 14 days from August 17 to file his material for the motion for leave to appeal, when in fact these were only required 14 days “before the motion”. He had until September 10 to file his material, but his Motion Record, Factum and Book of Authorities were served and filed by September 3, 2009. Mr. Harason believed he had until seven days prior to the motion to file his responding material, but it is clear from Justice Swinton’s letter of August 17 that his material was to be delivered within seven days of receiving Mr. Shekhdar’s material. It was due September 1, 2009. Mr. Shekhdar admits that he received the Respondent’s material (a Responding Motion Record, Factum and Book of Authorities), by e-mail, in pieces, over the period September 10-12, 2009. Mr. Shekhdar asserts a right of reply to that material and to that end delivered an extensive affidavit. He sets forth his present position in a 63 paragraph affidavit notarized September 22, 2009.

[5] At the commencement of the hearing of the motion on September 25, Mr. Shekhdar sought an adjournment of his own motion, on terms that included a stay of the interlocutory order from some 16 months ago that is the subject of his proposed appeal. He asserted a need to more fully reply to the Respondent’s Motion Record. It is true the Respondents did not deliver their materials within seven days of receiving Mr. Shekhdar’s material, but they did so approximately two weeks before the scheduled hearing of this motion. Mr. Shekhdar’s affidavit of September 22, 2009 evidences an ability to make a fulsome reply.

[6] During the course of the adjournment request I asked both sides to clarify why they thought new evidence could be filed by either side, since the motion for leave to appeal would consist of a review of the record before Campbell J. and not subsequent facts. On both sides the “new” evidence is somewhat wide-ranging and goes beyond its purported purpose of addressing the issue of extending the time for the motion for leave to appeal. I ruled that I would consider the new material from both sides (including Mr. Shekhdar’s affidavit of September 22, 2009) but only for the limited purpose of whether the time for leave to appeal should be extended. With that determination in mind I then refused to grant Mr. Shekhdar’s adjournment request. In my view his affidavit of September 22 satisfies any right of reply he enjoys under the Rules or otherwise

Extension of Time for Appeal

[7] On October 30, 2008 Campbell J. rendered his decision on two matters before him October 24, 2008: an appeal by Mr. Shekhdar from the interlocutory order of Master Dash dated May 5, 2008 and a motion to set aside the noting-in-default in Action No. 340/09. The decision of October 30 addressed the merits of those matters but reserved on the question of costs.

[8] A copy of the Endorsement of October 30, 2008 (found at tab 7 of Mr. Shekhdar’s current Motion Record) was sent to Mr. Shekhdar on or about November 3, 2008 together Mr. Harason’s Costs Outlines on both matters. Mr. Shekhdar chose not to respond and on April 20, 2009 Campbell J. decided the costs issues, giving written reasons that date.

[9] On April 24, 2008 Mr. Shekhdar delivered a motion for leave to appeal returnable in the Court of Appeal which he withdrew the same day, replacing it with a motion in this court to set aside the order of Campbell J.

[10] Subsequently the parties could not agree on the form of order, so that issue went back to Campbell J. on June 12, 2009, at which time he also apparently considered Mr. Shekhdar’s objection to the fact that the matter had proceeded in his absence the prior October. Justice Campbell signed a formal court order from a draft provided by Mr. Harason and gave written reasons which may be regarded as supplementary to his original reasons of October 30 and April 20.

[11] In the meantime Mr. Shekhdar had initiated an appeal to the Court of Appeal over all of this. On July 9, the Court of Appeal determined that it had no jurisdiction to address his issues and that his motion for leave to appeal ought to be in the Divisional Court because he was challenging the interlocutory order rather than the final order. Within a week of that decision, Mr. Shekhdar brought the Notice of Motion now before me seeking leave to appeal and the extension of time.

[12] It is appropriate to extend the time for the motion for leave to appeal for the following reasons:

(i) By e-mail dated November 18, 2008 Mr. Shekhdar wrote, “I shall be moving to transfer these actions directly to the Court of Appeal”. I accept this as evidence of his intention to appeal soon after receiving his copy of the decision of October 30, 2008 on November 3, 2008.

(ii) It was not unreasonable in the circumstances for Mr. Shekhdar to await the decision on costs and to try to convince the presiding judge to revisit the issues determined in his absence before proceeding with an appeal. The Endorsement of June 12, 2009 sustains Mr. Shekhdar’s submissions that Campbell J. was not “functus” until the order was settled on that date and that a reconsideration was (at least in the mind of Mr. Shekhdar) a possibility that might avoid the necessity of an appeal.

(iii) In dismissing a request for an extension of time for an appeal, the Court of Appeal simply ruled that Mr. Shekhdar had appealed to the wrong court. It did not turn its attention to the merits of whether time should be extended or not.

(iv) Though self-represented litigants and those living outside Canada while litigating here are bound by the same rules of procedure as Ontario litigants represented by counsel, it would reflect badly on the administration of justice in this case not to grant this indulgence to Mr. Shekhdar.

Merits of the Motion for Leave to Appeal

[13] I turn then to the merits of the motion.

[14] Mr. Shekhdar submits there are three errors that warrant appellate review.

(a) Did Campbell J. err in ordering Mr. Shekhdar to pay $15,000 for costs?

[15] Mr. Shekhdar submits that the motions judge erred by including in the costs award the “unnecessary costs” of the motion to set aside the noting-in-default; unnecessary because Mr. Shekhdar never noted the defendants in default. I reject this submission. Two separate Costs Outlines were delivered to Mr. Shekhdar November 3. The costs ordered were only in relation to the part of the order dismissing Mr. Shekhdar’s appeal of the order of Master Dash.

[16] Mr. Shekhdar also submits that the motions judge erred by failing to consider that Mr. Harason is not just participating as counsel, but also as a litigant. There is some merit to the argument that a proper assessment of costs needs to distinguish time spent by a person as counsel from time spent by that person as a litigant. However, I decline to grant leave to appeal the costs decision for these reasons.

(i) Mr. Shekhdar had literally months within which to make a submission on costs or to respond to the Costs Outlines, but he chose not to do so. In fact his submission about “the lawyer as litigant” is not even addressed at this late date in his Factum on this motion. It was raised for the first time in his oral submissions September 25, 2009.

(ii) The Endorsement on Costs, in paragraph [3], suggests the awareness of Campbell J. to the dual role of Mr. Harason in its reference to details of “the extent to which he as counsel has incurred time and expense” (emphasis added).

(iii) Campbell J. took into account that Mr. Shekhdar had levelled many accusations against Mr. Harason that brought Harason’s character, integrity and reputation into question, without proof. The judge indicated that the conduct of Mr. Shekhdar might warrant costs on a substantial indemnity scale. However, he made allowances for the fact that Mr. Shekhdar is a self-represented litigant by reducing the costs claimed by more than $5,000 to reflect a partial indemnity scale.

(iv) The issue has no broad implications which rise to the level of public importance, nor does the cost decision create any particular precedent.

(b) Did Campbell J. err in requiring Mr. Shekhdar to participate in the hearing of the Motion by Videoconference?

[17] The scheduling of the motion for October 24, 2009, first occurred on June 23, 2008. There were discussions at a very early stage about the manner by which Mr. Shekhdar would participate. His suggestions for participation by teleconference or public webcam were rejected with reasons. Mr. Harason’s insistence that Mr. Shekhdar appear either personally or by counsel in Toronto was also rejected. The court accepted a suggestion by Mr. Shekhdar himself that he participate by videoconference with the responsibility for setting up the videoconference resting on his shoulders. Mr. Shekhdar now submits that a telephone conference would have been adequate for his participation and he has also attempted to show that he could not afford the videoconference and was prevented from participating as a result. Mr. Shekhdar’s submission is that he was denied procedural fairness and natural justice because of his financial and geographic circumstances.

[18] I reject this submission for the following reasons:

(i) Mr. Shekhdar was the one who proposed the videoconference method and knew long in advance what was going to be required of him to set it up. See page 162 of his present Motion Record.

(ii) There is no right to appear by teleconference or videoconference. It is a discretionary indulgence and there is no demonstrable error in the exercise of the discretion in this particular case.

(iii) The Endorsement of June 12, 2009 addresses this issue and includes reconsideration of the issue. Campbell J. gives cogent reasons to explain the earlier decision requiring Mr. Shekhdar to set up the videoconference as an alternative to personal attendance, teleconference or webcam.

(iv) Importantly, Mr. Shekhdar did not submit evidence to Campbell J. before October 24 to prove either the cost of the videoconference or that he was impecunious or could otherwise not afford to set up that videoconference. It was only after the fact that such evidence was tendered.

(v) The submission that expensive dedicated videoconferencing violates Charter rights by discriminating on the basis of national origin against those foreign litigants who live in countries with weak currencies is patently absurd.

(c) Did Campbell J. err in hearing and determining the matter in Mr. Shekhdar’s absence October 24, 2008?

[19] Though it overlaps somewhat with the issues raised over the videoconferencing method, Mr. Shekhdar raises additional grounds as to the ex parte nature of the appeal hearing. Mr. Harason was present and was able, according to Mr. Shekhdar, to make disparaging and misleading comments about him to the motions judge. Mr. Shekhdar points out that Mr. Harason brought various e-mails to the attention of the motions judge in the affidavit material he filed but Mr. Shekhdar alleges that it did not include all of the e-mails, resulting in a mischaracterization and misjudgment of Mr. Shekhdar by the motions judge, as evidenced by reference to his “scurrilous” language, et cetera. Mr. Shekhdar also says the motions judge was led to believe that Mr. Shekhdar had noted the defendants in default when in fact he had not done so, and Mr. Harason knew or should have known that he had not done so. Mr. Shekhdar says that he had no opportunity to respond to the evidence of Karen Louzado in her affidavit sworn October 15, 2008.

[20] I reject these submissions because:

(i) The reasons of Campbell J. make it clear he considered all of the material filed by Mr. Shekhdar on his appeal of the decision of Master Dash and treated Mr. Shekhdar’s motion as a “motion in writing”. He did not dismiss the appeal just because Mr. Shekhdar failed to make any oral submissions.

(ii) Mr. Shekhdar chose not to avail himself of the right to appear by videoconference (a privilege that had been converted to a right by the preconference arrangements) nor did he do anything to request an adjournment from the presiding judge or explain the reason for his non-participation on October 24.

(iii) To the contrary, Mr. Shekhdar’s non-participation seems to have been a conscious and strategic choice on his part, as evidenced by e-mails October 9 and 24, 2008 in which he said in part, “I have decided to make my argument before a global audience where anyone and everyone, rather than masters and judges like Dash and Campbell, can come to their own conclusions”, and “I shall be taking you, along with the likes of [Madam Justice] Thorburn, [Mr.] Juma, [Master] Dash and such, to a far higher court: the Court of Public Opinion…so keep a watch on two URLs that I shall e-mail to you as soon as they are transferred to my name”.

I accept Mr. Shekhdar’s characterization of these e-mails as hasty and expressions of frustration and anger, but I cannot disregard the fact that he made a choice not to attend the hearing personally, by agent or through videoconference or in any other manner October 24. It was certainly reasonable for Campbell J. to assume Mr. Shekhdar was choosing not to participate in oral submissions.

(d) Other Considerations

[21] Even had I not rejected the various submissions of Mr. Shekhdar as already noted above, I would not grant leave to appeal in this case. The original decision of Master Dash is a decision to case manage a case that obviously needs case management. It is an interlocutory and procedural order only and it can be changed if circumstances warrant. There is nothing whatsoever to demonstrate that the decision was wrong in principle, is in conflict with any other decision or that it is outside the ambit of what is reasonable in the circumstances of the case. It is high time this stalled litigation moved forward for a determination on the merits.

[22] The motion for leave to appeal is therefore dismissed.

[23] Brief written submissions on costs by the Respondents on this motion may be made by fax transmission to my attention within the next 15 days. Mr. Shekhdar will have seven days to respond in like manner to any costs submission.

The Hon. Mr. Justice D. Aston

DATE RELEASED: September 30, 2009

DIVISIONAL COURT FILE NO.: 340/09 (07-CV-344269 PD3 (08-CV-347902PD3)

DATE HEARD: 20090925

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BEARD WINTER LLP, Plaintiff -and- KERSASP SHEKHDAR, Defendant

-and-

KERSASP SHEKHDAR, Plaintiff -and- BEARD WINTER LLP and ROBERT C. HARASON, Defendants

BEFORE: Justice D. Aston

COUNSEL: Robert C. Harason, for Beard Winter and Robert C. Harason Kersasp Shekhdar – Self-Represented

ENDORSEMENT

Aston J.

DATE RELEASED: September 30, 2009