CITATION: Mehta v. Sidhu, 2015 ONSC 5212
DIVISIONAL COURT FILE NO.: 83/15
COURT FILE NO: CV-13-0479867
DATE: 20150819
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KRUZICK, PERELL, and DUNPHY, JJ.
BETWEEN:
REMESH MEHTA, SEEMA MEHTA, SHIVANI INTERNATIONAL FOODS LTD, SIRDI SAI SWEETS INC. and SEEMA HOLDINGS INC.
Remesh Mehta, self-represented for the Plaintiffs
Plaintiffs/Appellant
- and -
HARBANS SINGH SIDHU, MANJIT KAUR SIDHU, 1413817 ONTARIO INC. 2150374 ONTARIO INC., 1560634 ONTARIO INC. 2029125 ONTARIO INC., 2164968 ONTARIO INC. and GRAND EMPIRE BANQUET & CONVENTION CENTRE LTD.
Defendants/Respondents
Antonin I. Pribetic for the Defendants/Plaintiffs by Counterclaim
AND BETWEEN:
HARBANS SINGH SIDHU, MANJIT KAUR SIDHU, 1413817 ONTARIO INC. 2150374 ONTARIO INC., 1560634 ONTARIO INC. 2029125 ONTARIO INC., 2164968 ONTARIO INC. and GRAND EMPIRE BANQUET & CONVENTION CENTRE LTD.
Plaintiffs by Counterclaim/Respondents
- and –
RAMESH MEHTA
Defendant by Counterclaim/Appellant
HEARD: August 18, 2014 at Toronto
PERELL J.
REASONS FOR DECISION
[1] By this appeal from the Order of Justice Penny dated October 27, 2014, the Plaintiff, Ramesh Mehta, who also represents the Plaintiffs Seema Mehta, Shivani International Foods Ltd., Sirdi Sai Sweets Inc. and Seema Holdings seeks an Order: (1) setting aside the costs award of $6,450 made by Justice Lederer; and (2) setting aside the costs award of $1,000 made by Justice Laskin of the Court of Appeal.
[2] The costs awards were made in favour of the Defendants and Plaintiffs by Counterclaim; namely: Harbans Singh Sidhu, Manjit Kaur Sidhu, 1413817 Ontario Inc., 2150374 Ontario Inc., 1560634 Ontario Inc., 2029125 Ontario Inc., 2164968 Ontario Inc. and Grand Empire Banquet & Convention Centre Ltd.
[3] During the argument of this appeal, Mr. Mehta acknowledged that the Divisional Court has no authority to set aside a costs award of the Court of Appeal, and Mr. Mehta said that he planned to pay the $1,000 costs award.
[4] Thus, the only issue before the Divisional Court is whether through an appeal of Justice Penny’s Order, this court should set aside Justice Lederer’s costs decision. Justice Lederer’s Order came about in the following way.
[5] The Mehtas and their corporations seek damages of $3 million in a commercial dispute with the Respondents, who collectively can be referred to as the Sidhus. In their defence, the Sidhu allege that several promissory notes are forgeries.
[6] The Mehtas action is in commercial court, and on March 13, 2014, at a case management attendance, Justice D.M. Brown ordered the Mehtas to produce the promissory notes for inspection and analysis by the Sidhus’ forensic document examiner and handwriting expert.
[7] Mr. Mehta was both offended and disturbed by Justice Brown’s Order. Mr. Mehta was offended because he was always prepared to produce the documents for forensic analysis, and, thus, he was apparently insulted to be ordered to do something he was already prepared to do. Mr. Mehta was disturbed by the Order because he did not believe that Justice Brown’s Order adequately protected the documents from being destroyed or lost.
[8] Because he was prepared to produce the documents but not prepared to do so without an adequate protective order, Mr. Mehta sought leave to appeal Justice Brown’s Order. That motion for leave to appeal was heard by Justice Lederer. Justice Lederer refused to grant leave, and by Order dated June 2, 2014, he ordered the Mehtas to pay costs of $6,450, all inclusive.
[9] By Order dated September 8, 2014, Justice Laskin dismissed the Mehta’s motion for an extension of time to appeal Justice Lederer’s Order. Justice Laskin fixed costs at $1,000.
[10] Although Mr. Mehta’s motion for leave to appeal was dismissed, Mr. Mehta believes that the dismissal should have been without costs and that Justice Lederer erred by awarding costs of $6,450. As I understand Mr. Mehta’s argument, notwithstanding that the Mehta’s motion for leave to appeal was dismissed, the Mehtas were, nevertheless, the successful party because they actually produced the documents in a way that was satisfactory to them.
[11] In other words, Mr. Mehta says that he never complied with Justice Brown’s allegedly unnecessary Order but rather produced the documents on his own terms and, therefore, the Mehtas were, in truth, the successful party and they should not have been ordered to pay costs, which they in fact have refused to do.
[12] The Mehtas backed up their refusal to pay the costs portion of Justice Lederer’s Order by attempting to appeal his Order, but they did not do so promptly and, as already noted, Justice Laskin refused to grant an extension of time.
[13] When the Mehtas failed to pay the costs award of Justices Lederer and Laskin respectively, the Sidhu’s responded with a motion for a stay of the action, which motion was heard by Justice Penny, who stayed the action for the Mehtas’ failure to pay the costs awards.
[14] It is in the context of an appeal from Justice Penny’s stay Order of October 27, 2014 that the Mehtas now seek an order setting aside Justice Lederer’s costs award of $6,450.
[15] The Mehtas’ appeal of Justice Lederer’s costs order should be dismissed for three reasons.
[16] First, although Justices Brown’s and Justice Lederer’s Orders are the background to Justice Penny’s Order, an appeal of Justice Penny’s Order does not provide a means to re-open those decisions. In particular, Justice Lederer’s Order cannot be collaterally attacked by an appeal of Justice Penny`s Order.
[17] Second, in any event, the Mehtas have not demonstrated that Justice Lederer made any error in awarding costs to the Sidhus. The motion brought by the Mehtas was for leave to appeal and the Mehtas were unsuccessful in obtaining leave. They lost the motion. Justice Lederer made the normal order awarding costs to the Sidhus, the successful party on the motion.
[18] Third, although the Mehtas may believe that they were the victorious party because regardless of Justice Brown`s Order they produced the documents in a fashion that was apparently satisfactory to them, this does not change the fact that they lost the motion for leave to appeal the Order of Justice Brown, and it was both normal and appropriate for Justice Lederer to order the unsuccessful party to pay costs. Their rationalized success does not belie the fact that their motion for leave to appeal was dismissed.
[19] Accordingly, the appeal should be dismissed.
[20] With respect to costs, having considered the costs submissions made at the time of the argument of the appeal and having reviewed the Sidhus Bill of Costs, I award costs of $10,000, all inclusive, on a partial indemnity basis payable to the Sidhus in any event of the cause.
[21] I have made the costs award in any event of the cause (i.e. not forthwith) because the action is ready for trial or for a summary judgment motion, and it is time to stop wrangling about interlocutory orders and to have a trial on the merits, which is available to the Plaintiffs by satisfying the terms of Justice Penny`s Order and having the stay vacated and getting on with the action.
Perell, J.
Kruzick, J.
Dunphy, J.
Released: August 19, 2015
CITATION: Mehta v. Sidhu, 2015 ONSC 5212
DIVISIONAL COURT FILE NO.: 83/15
COURT FILE NO: CV-13-0479867
DATE: 20150819
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
REMESH MEHTA, SEEMA MEHTA, SHIVANI INTERNATIONAL FOODS LTD, SIRDI SAI SWEETS INC. and SEEMA HOLDINGS INC.
Plaintiffs/Appellant
- and -
HARBANS SINGH SIDHU, MANJIT KAUR SIDHU, 1413817 ONTARIO INC. 2150374 ONTARIO INC., 1560634 ONTARIO INC. 2029125 ONTARIO INC., 2164968 ONTARIO INC. and GRAND EMPIRE BANQUET & CONVENTION CENTRE LTD.
Defendants/Respondents
AND BETWEEN:
HARBANS SINGH SIDHU, MANJIT KAUR SIDHU, 1413817 ONTARIO INC. 2150374 ONTARIO INC., 1560634 ONTARIO INC. 2029125 ONTARIO INC., 2164968 ONTARIO INC. and GRAND EMPIRE BANQUET & CONVENTION CENTRE LTD.
Plaintiffs by Counterclaim/Respondents
- and –
RAMESH MEHTA
Defendant by Counteclaim/Appellant
REASONS FOR DECISION
Perell, J.
Released: August 19, 2015