Shekhdar v. K&M Engineering

CITATION: Shekhdar v. K&M Engineering, 2011 ONSC 7480

DIVISIONAL COURT FILE NO.: 279/10

DATE: 20120410

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: KERSASP SHEKHDAR Plaintiff

– and –

K&M ENGINEERING AND CONSULTING CORPORATION, FREEWILLS, INC., FREEWILLS.COM (U.S.), INC., WILLIAM KAPPAZ, REGINA GUERIN, FREEWILLS.COM (BERMUDA) LIMITED also known as FREEWILLS.COM (BERMUDA) LTD., FREEWILLS.COM (CANADA) INC. and 3693759 CANADA INC. Defendants

BEFORE: JENNINGS, DAMBROT AND HARVISON YOUNG JJ.

COUNSEL: Kersasp Shekhdar, Self Represented Robert C. Harason, on his own behalf and for Beard, Winter Matthew Moloci, for the Defendants

COSTS E N D O R S E M E N T

[1] In a brief judgment dated December 14, 2011, we dismissed the appeal brought by Kersasp Shekhdar from the decision of Roberts J. upholding the validity of a direction assigning the proceeds of certain litigation to the respondent, Beard Winter, and awarded costs to K&M fixed at $500.00. Beard Winter’s costs were made the subject of written submissions. We have now reviewed those submissions.

[2] Beard Winter seeks costs on a substantial indemnity basis in the amount of $29,532.91, or in the alternative on a partial indemnity basis in the amount of $22,990.21. Beard Winter complains of the manner that Mr. Shekhdar pursued this litigation, including his making allegations of impropriety against Mr. Harason in particular. For his part, Mr. Shekhdar asks that costs be awarded to him in the amount of $3000 to $4000, claiming that Beard Winter won only a Pyrrhic victory and that Mr. Harason engaged in bullying tactics and other misconduct.

[3] We are of the view that since costs ordinarily follow the event, Beard Winter is entitled to some costs, and Mr. Shekhdar is not. We note however that Mr. Harason has invested much more time in this matter then it deserves, and seeks compensation at an unjustifiably high rate. This reflects what should have been obvious to him by now in light of the judicial comments previously made about his conduct: that it was unwise for him to have continued to appear on this matter.

[4] When we speak of previous judicial comments, we have in mind, for example, the comment of Molloy J. in her decision granting an extension of time to bring this appeal. She said, “I recognize that Mr. Harason did tell Mr. Shekhdar that he was following the wrong procedure, but given the level of vitriol between these two gentlemen, it is not surprising to me that Mr. Shekhdar did not rely on his advice.” She further said, “I caution the parties with respect to the nature of the sweeping and unnecessary allegations that are being made against each other. They are advised to stick to the issues on the appeal and avoid the unpleasant name-calling that has crept into their communications and pleadings in this matter.”

[5] At an earlier stage in this litigation, Aston J. also made some very unflattering comments about Mr. Harason’s conduct. In particular, he said, “Unfortunately, Mr. Harason’s judgment as a lawyer is clearly impaired by his role as his own client,” and as an example cited Mr. Harason’s unnecessarily lengthy material in which he presented accusations and opinions as facts.

[6] Considering the background of this matter, the brief attendance required in court, the lack of complexity, and the near certainty of the result, we believe that setting costs in the amount of $2,000 would be appropriate. We award costs to Beard Winter in the amount of $2,000, all-inclusive and payable forthwith.

Jennings J.

Dambrot J.

Harvison Young J.

DATE: April 10, 2012