CITATION: Khan v. 1806700 Ontario Inc., 2017 ONSC 3450
DIVISIONAL COURT FILE NO.: 145/17
DATE: 20170605
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: MUHAMMAD ASLAM KHAN v. 1806700 ontario inc. and others
BEFORE: NORDHEIMER J.
COUNSEL: M. Khan, moving party in person
T. Gleason & R. Glass, for the responding party, Sandeep Singh Johal
HEARD at Toronto: written submissions
E N D O R S E M E N T
[1] The moving party seeks leave to appeal from the decision of Matheson J., dated March 7, 2017, in which the motion judge struck out the plaintiff’s claim against Sandeep Singh Johal with leave to amend and stayed the proceeding pending the final determination of related proceedings ongoing in Brampton.
[2] This litigation involves allegations by the plaintiff against Mr. Johal, among others, arising out of the enforcement of a mortgage. Mr. Johal is a lawyer who acted for the numbered company in the action to enforce the mortgage. The plaintiff, who is also a lawyer, served a Notice of Sale on behalf of a third mortgagee. Proceedings resulted, first in Brampton and then later in Toronto. Both proceedings were continuing in parallel. Eventually, Mr. Johal brought a motion to strike out the Toronto proceeding as an abuse of process.
[3] Matheson J. has heard more than one motion with respect to this proceeding and has, on more than one occasion, struck out the statement of claim with leave to amend, as she did in the order that is the subject of this motion. In this particular instance, Matheson J. found that the statement of claim did not properly state or plead any of the causes of action that the plaintiff says that he wishes to pursue.
[4] In order to obtain leave to appeal, a moving party must satisfy one of the two tests set out in r. 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that reads:
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.
The plaintiff relies on both tests on his motion.
[5] The plaintiff has not demonstrated that there is any conflict in principle between the motion judge’s decision here and that reached in other cases, as opposed to cases that reached different conclusions based on different facts. Indeed, the plaintiff does not even point to a decision that is in conflict. It is not surprising that no conflicting cases can be identified since this is a pleadings motion and such motions will almost always turn on their own particular facts, including the contents of the particular pleading that is in issue.
[6] In terms of the second test for leave to appeal, the plaintiff has not pointed to anything that would satisfy me that there is good reason to doubt the correctness of the motion judge’s decision. The motion judge exercised her discretion in an appropriate manner. She found that the amended statement of claim, as drafted, failed to properly set out any cause of action and she gave detailed reasons for her conclusions. Notwithstanding that the plaintiff had already been given one opportunity to amend his claim, the motion judge provided him with another opportunity. In the end result, the motion judge went out of her way to grant another indulgence to the plaintiff to properly plead his claim.
[7] Aside from those conclusions, I do not find that an appeal is desirable or that the issue raised is of such importance that leave to appeal ought to be granted under the second branch of either test. As I said on an earlier occasion:
Accordingly, it should be the rare or unusual case where a pleadings issue ought to warrant the time and attention of a reviewing court by way of an appeal.[^1]
[8] Consequently, the motion for leave to appeal is dismissed.
[9] In terms of costs, the responding party seeks costs on a full or substantial indemnity basis. I do not see any reason to award costs of a full indemnity basis. There is, however, a reason to award costs on a substantial indemnity basis. The plaintiff has made serious allegations against the responding party, in terms of his conduct, that are particularly egregious given that the responding party is a lawyer. For example, the plaintiff alleged that the responding party “falsified” his affidavit. The plaintiff also made disparaging comments about the conduct of counsel for the responding party.
[10] A party must be very careful about making allegations that impugn the integrity of another party. In this case, not only do those allegations appear to be unfounded, they are also unnecessary to any issue properly raised in the motion. The situation is made worse by the fact that the plaintiff is himself a lawyer and is properly held to a higher standard in this respect when acting on his own behalf. It is clear in the case law that making “allegations of improper conduct seriously prejudicial to the character or reputation of a party” is a proper basis upon which to make an award of costs on the higher substantial indemnity scale.[^2] I am satisfied that is the case here.
[11] Consequently, I fix the costs of the motion for leave to appeal on a substantial indemnity basis in the amount of $5,000 inclusive of disbursements and HST payable by the plaintiff to the responding party within thirty days.
NORDHEIMER J.
DATE: June 5, 2017
[^1]: Apotex Inc. v. Pfizer Ireland Pharmaceuticals, 2016 ONSC 7193 at para. 10
[^2]: Murano v. Bank of Montreal (1998), 1998 5633 (ON CA), 41 O.R. (3d) 222 (C.A.)