Olubunmi Ogunniyi

A motion for summary judgment in a mortgage enforcement action.

The plaintiff advanced $120,000 to the defendant secured by a second mortgage on residential property at an interest rate of 12% for a six-month term expiring July 8, 2025.

The mortgage was not paid at maturity.

The defendant raised four defences: lack of legal demand, improper additional charges, denial of the principal amount, and entitlement to a 120-day grace period.

The court found no genuine issue requiring trial and granted summary judgment to the plaintiff, though it substantially reduced the claimed additional charges by applying section 8 of the Interest Act.

The court allowed the defendant until December 1, 2025 before execution on a writ of possession.

The applicant, Mitsubishi HC Capital Canada Inc., sought the appointment of a receiver over the property of the respondent, Ribs Transport Inc., following defaults under a credit agreement and two settlement agreements.

The court found that a subsequent settlement agreement (the "Second Settlement Agreement") was binding and that Ribs had substantially complied with its terms, including making significant payments and arranging a required meeting, albeit late.

The court declined to appoint a receiver, holding that such an appointment was not just or convenient in the circumstances, and adjourned the application sine die, returnable on notice if the settlement was breached.

The court granted summary judgment in favour of the plaintiffs, Benny and Joy Osajie, in a real estate transaction dispute.

The defendant, Eevine Alile, failed to close on an agreement of purchase and sale, alleging misrepresentation regarding square footage, poor property condition, and the absence of a basement tenant.

The court found no genuine issue requiring a trial on any of these grounds, dismissed the defendant’s counterclaim, and awarded damages and costs to the plaintiffs.

The plaintiff, Natalie Walker, brought a motion for default judgment against 13690792 Canada Inc. and its directors, Rafiqul Malik and Titus Muhuri, for misappropriation of $69,000 loaned for real estate investment.

The defendants failed to defend the action or respond to the motion, having been noted in default.

The court found the defendants jointly and severally liable for civil fraud, piercing the corporate veil due to the directors using the corporation as a shell to funnel money to themselves.

The court awarded damages, punitive damages, prejudgment and postjudgment interest, and costs on a substantial indemnity basis due to the defendants' sanctionable conduct, including breaching a prior court order.

The applicants sought costs on a substantial indemnity basis after being successful in their application.

The respondent sought costs on a partial indemnity basis, arguing he was more successful.

The court found both parties disregarded judicial directions regarding costs and procedural law.

While the applicants were entitled to costs, the court found no basis for substantial indemnity.

The court significantly reduced the quantum of costs claimed by the applicants due to excessive rates and time spent on an uncomplex matter, and considered the parties' litigation conduct, particularly the respondent's worse conduct.

The applicants were awarded $25,000.00 on a partial indemnity basis.

The applicants sought relief from various fees charged by the respondent on a mortgage, arguing they breached the Interest Act and Criminal Code, and also sought production of documents and a declaration of prejudicial conduct.

The court found that renewal, administration, and NSF fees were not properly chargeable as no evidence of incurred costs was provided, applying s. 8 of the Interest Act.

Legal fees were found chargeable at an admitted quantum.

The request for declaratory relief was dismissed as it served no practical purpose and sought to predetermine future issues.

The court also heavily criticized both counsels for extensive procedural non-compliance.

The plaintiff brought an action against the defendants for fraud, breach of contract, negligence, and unconscionability arising from a series of private mortgages and a construction contract.

The individual defendant, acting as a trusted friend and financial advisor, induced the plaintiff to enter into a construction contract with a fictitious company and to take out multiple mortgages at high interest rates with his own lending company.

The construction work was abandoned, poorly executed, and failed to comply with the Building Code.

The court found that the defendants committed fraudulent misrepresentation, deceit, and negligence, and that the transactions were unconscionable.

The court set aside the mortgages and the construction contract, and ordered the defendants to pay damages for the cost of repairing and completing the construction.

The Plaintiff, having successfully obtained summary judgment for $75,000 due to the Defendants' failure to close a property transaction, sought substantial indemnity costs of $42,272.20.

The court reviewed the Defendants' pleadings and found no unsubstantiated allegations of fraud against the Plaintiff, which was the basis for the substantial indemnity request.

Applying the principles of costs under Rule 57.01(1), the court declined to award substantial indemnity.

Instead, it exercised its discretion to award partial indemnity costs of $28,000, representing approximately two-thirds of the amount claimed, finding the claimed amount to be closer to full recovery rather than substantial indemnity. interesting_citations_summary: > This decision clarifies the threshold for awarding substantial indemnity costs, emphasizing that such an award requires serious and totally unfounded allegations that impugn the honesty, integrity, and reputation of the other side, as distinguished from general questions about the legitimacy of a subsequent sale.

It reinforces that costs awards are discretionary, should be fair, just, and reasonable, and bear a proportionate connection to the result, while also serving to partially indemnify successful litigants and discourage inappropriate conduct.

The court applied Rule 57.01(1) factors in determining the quantum of costs. final_judgement: "The Defendants shall pay to Shamim Rana Khan costs in the total sum of $28,000.00, all-inclusive, within thirty days of the date of this Endorsement." winning_degree_applicant: 2 winning_degree_respondent: 4 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2018 decision_number: 7486 file_number: "3314/17" source: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc7486/2018onsc7486.html" cited_cases: legislation: - title: "Rules of Civil Procedure, R.R.O. 1990, Reg. 194" url: "https://www.ontario.ca/laws/regulation/900194" case_law: - title: "Catalyst Capital Group Inc. v. Moyse, 2018 ONCA 283" url: "https://www.canlii.org/en/on/onca/doc/2018/2018onca283/2018onca283.html" keywords: - Costs - Substantial indemnity - Summary judgment - Rules of Civil Procedure - Rule 57.01(1) - Fraud allegations - Real estate transaction - Failed closing areas_of_law: - Civil Procedure - Costs - Real Estate Law --- # Court File and Parties **COURT FILE NO.:** 3314/17 **DATE:** 2018 12 13 **SUPERIOR COURT OF JUSTICE - ONTARIO** **RE:** Shamim Rana Khan, Plaintiff **AND:** Richard Mwakijale, Pauline Oyugi, Alice Mwakijale and Rosemary Njomvu, Defendants **BEFORE:** Conlan J. **COUNSEL:** Olubunmi Ogunniyi, Counsel for the Plaintiff Julius Omware, Counsel for the Defendants --- # Endorsement on Costs ## I. Introduction [1] The Plaintiff, Shamim Rana Khan (“Khan”), brought a motion for summary judgment against the Defendants, Richard Mwakijale, Pauline Oyugi, Alice Mwakijale, and Rosemary Njomvu. [2] The Defendants had agreed to purchase a property in Toronto from Khan.

There was a signed Agreement of Purchase and Sale (“Agreement”).

The Defendants failed to close the transaction.

Although Khan was able to later sell the property to someone else, she lost $75,000.00 in sale proceeds. [3] The Defendants, in their pleading, did not deny that they failed to close the transaction as per the signed and valid Agreement.

In a nutshell, they blamed the failed transaction on their real estate agent and his employer in, for example, permitting them to waive the financing condition, and the Defendants commenced a Third Party Claim accordingly. [4] Khan’s Motion was heard on October 4, 2018.

Extensive materials had been filed by Khan.

Nothing had been filed by the Defendants.

The Defendants requested yet another adjournment of the Motion, which request was denied for written reasons delivered by this Court on that day.

Khan’s Motion was granted, for oral reasons delivered at Court on October 4th.

Judgment was granted in favour of Khan in the principal amount requested, $75,000.00. [5] This Court ordered that written submissions on costs could be filed, and deadlines were outlined for the parties.

Khan has filed her submissions on costs.

The Defendants have filed nothing. ## II.

Khan’s Position on Costs [6] Khan requests costs on a “substantial indemnity” basis in the total amount of $42,272.20. [7] She focusses on the Defendants’ unsubstantiated allegations of fraud on the part of Khan as the reason for an award of costs on a substantial indemnity scale. ## III.

Basic Legal Principles on Costs [8] I must keep these things in mind in making the decision on costs: (i) the Plaintiff, as the successful party, is presumed to be entitled to some costs; (ii) quantum of costs is largely discretionary; (iii) the objective is to make an award that is fair, just and reasonable in all of the circumstances, including the prudent expectations of the losing side; (iv) costs should generally bear some proportionate connection to the result achieved; (v) cost awards are designed to partially indemnify successful litigants, encourage settlement, and discourage or sanction inappropriate conduct by litigants; and (vi) in determining the quantum of costs, I should consider the various factors outlined in [Rule 57.01(1) of the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194). ## IV.

Decision [9] I have reviewed the Defendants’ pleadings that are contained in the Motion Record that was before this Court on October 4, 2018.

There is nothing contained therein with regard to allegations of fraud against Khan. [10] I do recall the issue of the legitimacy of the ultimate sale of the property by Khan to a third party having been raised by the Defendants during the course of the litigation.

But that does not bring this case within the four corners of the decision relied upon by Khan, [Catalyst Capital Group Inc. v. Moyse, 2018 ONCA 283](/on/onca/2018/283), [2018] O.J. No. 1523 (C.A.). [11] In that case, unlike ours, there were very serious and totally unfounded allegations pleaded and maintained throughout the litigation which sought to impugn the honesty, integrity, and reputation of the other side. [12] Thus, I decline to award to Khan her costs on a substantial indemnity scale. [13] Seeing nothing excessive about the time spent or the hourly rate charged by Khan’s counsel, and seeing nothing unreasonable contained in the Costs Outline filed, this Court exercises its discretion to reduce the award of costs in favour of Khan from the $42,272.20 claimed to an even $28,000.00, all-inclusive. [14] I note from a careful review of the Costs Outline that the $42,272.20 figure, although it is described in Khan’s costs submissions as being recovery on a “substantial indemnity” scale, appears really to be full recovery.

That is further reason to discount the award to something in the neighbourhood of two-thirds recovery, which the $28,000.00 figure represents. [15] This Court orders that the Defendants shall pay to Khan costs in the total sum of $28,000.00, within thirty days of the date of this Endorsement. --- Conlan J. Date: December 13, 2018

Hamilton Cab Company Inc. and John Dean sought summary judgment against Jaspal Gill and related numbered companies concerning outstanding debt, mortgage enforcement, and a counterclaim for professional negligence.

The court granted Hamilton Cab's motion for possession of mortgaged properties and partial summary judgment for $470,487.62, with additional debt to be determined on a reference.

The court dismissed the Gill defendants' counterclaim against John Dean, finding no genuine issue for trial regarding the validity of the agreements or the solicitor's standard of care.

The appellants appealed an order granting a writ of possession to the respondent assignee of a defaulted mortgage.

The appellants argued the motion judge's reasons were inadequate, the Farm Debt Mediation Act applied, the increased interest rate violated s. 8 of the Interest Act, the assignment constituted a new mortgage, the terms were unconscionable, and the motion judge erred by tying two mortgages together.

The Court of Appeal dismissed all arguments, finding the reasons adequate for a simple record, no evidence of farming, no violation of the Interest Act, and that the assignment merely amended existing terms.

The appeal was dismissed with costs.

The plaintiff requested a telephone conference to settle the form of an order made at a previous motion.

The defendants' counsel of record had declined to approve the draft order because his retainer was terminated and the corporate defendant intended to act in person.

The court held that because the corporate defendant had not obtained leave to act in person and the lawyer had not been removed from the record, the lawyer had a professional obligation to approve the draft order as to form and content.

The court signed the draft order.

The appellants appealed a trial judgment ordering them to pay $30,213 on a second mortgage.

They argued the trial judge made inconsistent factual findings regarding a $33,000 mortgage commission and erred in enforcing the mortgage despite the respondent being an unlicensed lender in breach of the Mortgage Brokerages, Lenders and Administrators Act.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the factual findings and holding that a breach of the Act does not render the underlying contract a nullity.

The appellant appealed the dismissal of his action against the respondent.

The Court of Appeal upheld the motion judge's finding that the action was essentially about a promissory note to which the respondent was not a party, as the loan was made to a company and her husband.

The appeal was dismissed with costs fixed at $5,000.