CITATION: Khan v Khan 2015 ONSC 6855

COURT FILE NO.: DC-15-019-00

DATE: 2015 11 05

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

TARIQ W. KHAN

In person

Appellant/Plaintiff

• and -

SALIM KHAN, ASSET AUCTION, CREA, CANADIAN REAL ESTATE AUCTION LTD, KASHIF KAHN

Raj K. Sharda, for the Respondents/Defendants

Respondents/Defendants

HEARD: October 30, 2015

BEFORE: Justice A.D.K. MacKenzie

1This is an appeal from a Small Claims costs order of Deputy Judge K. McCabe dated January 22, 2015. The order in appeal awarded costs of $7,500 against the plaintiff in favour of the respondents whose claims totalled $20,310. (Two of the respondents settled their accounts with the plaintiff for $4,000 and thus were not involved in the appeal.)

2The appellant seeks to have the costs order set aside and in its place an order for payment by the respondents to the appellant of $2,340, being the aggregate of previous costs awarded to the appellant payable by the respondents in the numerous pretrial proceedings.

3The appellant submits, among other things, that Deputy Judge McCabe erred in law by awarding $7,500 in costs where the total claims before the court were $20,319, in that such amount of $7,500 was in contravention of the Small Claims Court Rule 19 and section 29 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended.

4Rule 19 provides, among other things, for costs to a successful party, comprising reasonable disbursements (r. 19.01(1)) and a reasonable representation fee, if a successful party is represented at trial (r. 19.04). Any power under r. 19 to award costs is subject to s. 29 of the Courts of Justice Act, which limits the amount of costs that may be awarded (r. 19.02).

5Section 29 of the Courts of Justice Act provides:

29. An award of costs in the Small Claims Court, other than disbursements, shall not exceed 15 per cent of the amount claimed or the value of the property sought to be recovered unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding. R.S.O. 1990, c. C. 43, s. 29; 2006, c. 21, Sched. C, s. 105 (2).

6In aid of his position that Deputy Judge McCabe erred in awarding costs of $7,500, the appellant refers to the costs submissions of counsel for the respondents (by letter dated November 27, 2014, p. 2, 2nd last paragraph, last two lines) where counsel refers to “the maximum claim that could have been advanced were $75,000.” The appellant contends that Deputy Judge McCabe erroneously applied the 15 percent limit set out in s. 29 of the Courts of Justice Act to the $75,000 maximum allowable claim and failed to take into account the fact that the actual claim before the trial court was $20,319.

7In his Costs Endorsement dated January 22, 2015, Deputy Judge McCabe, after noting that he had “received the costs submissions of the plaintiff and counsel for the defendants” wrote the following:

After consideration [of] the reasons for judgment, the complexity of the case, the number of claims and defences and the days in hearings and trials and in consideration of the guidelines set out in Rule 19 and S. 29 of the C.J.A. I have concluded that an order for costs in the amount of $7,500.00 inclusive would be a fair and reasonable amount of costs for the Plaintiff to pay to the collective Defendants as set out in the judgment. [Emphasis Added]

Analysis

8The standard of appellate review on a question of law is correctness. As noted above, the costs award was made in favour of the “collective” defendants. At trial, the aggregated claims against the respondents/defendants who had not settled with the appellant/plaintiff was $20,319.

9In the absence of any particulars in the reasons in the costs endorsement that would indicate otherwise, there is no basis to activate the escape clause in s.29 so as to avoid the limit on costs of 15 percent of the amount sought to be recovered. Here, the amount sought to be recovered in the trial against the “collective” defendants was $20,319. Rounding this amount to $20,000, and applying s. 29 of the Courts of Justice Act, the costs award to the respondents/defendants is amended to $3,000, all inclusive. As noted above, the appellant/plaintiff seeks a credit of $2,340 against the costs awarded to the respondents/defendants.

10By endorsement dated March 23, 2011, Deputy Judge M. Klein ordered, among other things, that “all outstanding costs orders [were] to be dealt with at trial.” I am not persuaded that Deputy Judge McCabe’s declining to dispose of the outstanding costs orders constitutes an error in law. In his costs endorsement, he acknowledged having reviewed the submissions of both parties and, in the exercise of his discretion, declined to give effect to the credit sought by the appellant/plaintiff.

11In the result, the appeal is dismissed and the costs award is amended in accordance with the above reasons.

12In light of the result and in the absence of responding materials on the appeal being filed by the respondents/defendants, there will be no award of costs of the appeal.

Justice A.D.K. MacKenzie

Released: November 5, 2015

CITATION: Khan v. Khan 2015 ONSC 6855

COURT FILE NO.: DC-15-019-00

DATE: 2015 11 05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N: