CITATION: Shekhdar v. Beard Winter LLP, 2017 ONSC 3820
DIVISIONAL COURT FILE NO.: 11/17
DATE: 20170620
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
KERSASP SHEKHDAR
Kersasp Shekhdar, representing himself, by teleconference
Applicant/Appellant
– and –
Beard Winter LLP and Robert C. Harason
Gavin Tighe and Robin Lee Winterstein, for the Defendants/Respondents
Defendants/Respondents
HEARD at Toronto: June 20, 2017
A.D. Kurke J. (Orally)
[1] Appellant appeals against the Order of Master Thomas Hawkins of December 20, 2016, dismissing the appellant’s legal malpractice action against the respondents, pursuant to Rule 60.12 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. He also appeals against the same Master’s Order, released February 7, 2017, awarding the respondents substantial indemnity costs of the dismissed action, as well as of the dismissal motion itself. Lastly, he appeals against Master Hawkins’ refusal to allow him to cross-examine the affiant of an affidavit that formed part of the respondents’ materials on the dismissal motion, or to move to require her to present herself for cross-examination.
Issue 1: Cross-examination
[2] Appellant asserts that the affiant, a Ms. Craven, perjured herself, defamed him, made admissions against interest that call out for cross-examination, and should be cross-examined. He asserts and explains why he believes that he had a right to cross-examine affiant Ms. Craven. But he does not address the Reasons of the learned Master in any meaningful way.
[3] The learned Master dealt comprehensively with appellant’s claims concerning cross-examination of Ms. Craven, and explained that the appellant sought to cross-examine on an irrelevant affidavit, and additionally had not taken the necessary preliminary steps that would have allowed him to cross-examine Ms. Craven. Having discussed these things, the learned Master concluded, at para. 95 of his impugned decision, that he would not dismiss the dismissal motion on the ground that the appellant was prevented from a cross-examination to which he was not entitled. In any event, the affidavit at issue is for the most part nothing other than a vehicle for attaching the documentary evidence that actually was the evidence on the motion.
[4] Nothing in the record persuades me that the learned Master made any legal or factual error in so finding, and I decline to retry this motion as the appellant would have me do.
[5] This ground of appeal fails.
Issue 2: The dismissal of the appellant’s action
[6] At the end of the day, this issue relates to the appellant’s failure to pay to the respondents a substantial amount of costs awarded in various motions and appeals in the course of the appellant’s action. The arguments now raised by the appellant are the same ones that were raised before the learned Master, who carefully parsed the costs ordered in the various orders, considered the effect of appeals on the validity of the various orders, and found that the appellant had only ever paid $5,000 out of tens of thousands of dollars owed to the respondents in costs.
[7] The appellant’s success on this ground hinges on his ability to convince me that the Orders of Harvison Young J. reactivating costs awards against the appellant are “illegal”. He submits that they should not be permitted to affect the validity of a Master’s order putting off the due date of costs awards, or of a purported “contract” that the appellant felt existed between himself and the respondents that should prevent them from enforcing the costs awards by estoppel. I am not convinced. I am persuaded of no factual or legal error in the Reasons of the learned Master, and I refuse to delve with the appellant back into the determination of facts reasonably found by the learned Master.
[8] This ground of appeal fails.
Issue 3: Costs of the motion and the action
[9] The appellant argues that it was unfair of the learned Master to award costs to the respondents on a substantial indemnity basis, and that it was improper to award costs on the legal malpractice action at all, as opposed to the dismissal motion. The appellant argues that the Master was functus officio after dismissing the action, and therefore could not award costs that accrued during it. He also argues that the Master was not sufficiently clear in asking for costs submissions, and that the appellant had no way of knowing that costs submissions were to be offered on both the action and the dismissal motion.
[10] In his factum, the appellant likens the learned Master to an enraged “tinpot dictator”, who abused his authority by ordering costs on the action, when “he had already dismissed [appellant’s] action without costs and explicitly requested submissions as to the costs of the motion…”. I see no such limitation in the Reasons released December 20, 2016. The Master specifically reserved to himself the costs decision, and there is no reason to limit the Master’s invitation for submissions to only costs submissions on the motion to dismiss. Indeed, the appellant indicates that he received the respondents’ costs submissions, but may not have read them. He should have.
[11] The learned Master noted that the appellant’s costs submissions remained as inflammatory, vitriolic, and improper as his submissions had been to that point, at paras. 136 to 140 of his Reasons released February 7, 2017.
[12] I note in particular para. 139, in which the learned Master states:
…If anything, [the appellant’s] costs submissions were even more intemperate and contained many more accusations of the kind I have objected to than his previous written submissions. I feel that awarding the defendants substantial indemnity costs is one way of expressing this Court’s strong condemnation of [the appellant’s] conduct.
[13] The appellant disagrees that he has made improper allegations, as he believes that he has proven the corruption and dishonesty of the legal players in this case from the respondents and Ms. Craven up through sitting Masters and Justices.
[14] I see no such proof. The findings of the learned Master openly engage Rule 57.01(1)(e), (f), and (i) at the least. Costs are the standard means of governing the conduct of parties, and expressing the court’s concerns about it. A high costs award in this case is appropriate on the Master’s factual findings.
[15] I see no error in the learned Master’s findings or costs award.
[16] The appeal is dismissed.
[17] I have endorsed the Appeal Book & Compendium Vol. 1 as follows: “For reasons delivered this date, the appeal is dismissed. I award costs on this appeal to the Respondents from the Appellant, in the amount of $5,500, all inclusive.”
___________________________ A.D. Kurke J.
Date of Reasons for Judgment: June 20, 2017
Date of Release: June 21, 2017
CITATION: Shekhdar v. Beard Winter LLP, 2017 ONSC 3820
DIVISIONAL COURT FILE NO.: 11/17
DATE: 20170620
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
KERSASP SHEKHDAR Applicant/Appellant
– and –
BEARD WINTER LLP and ROBERT C. HARASON Defendants/Respondents
ORAL REASONS FOR JUDGMENT
A.D. Kurke J.
Date of Reasons for Judgment: June 20, 2017
Date of Release: June 21, 2017