Court of Appeal for Ontario

Date: 2017-10-23

Docket: C62436 & C63026

Judges: Pepall, van Rensburg and Trotter JJ.A.

Parties

Between

Randy Misir Plaintiff (Respondent in Appeal)

and

Geree Misir and Rajendra Narine (a.k.a. Hardial Singh) Defendants (Appellants)

And Between

Randy Misir Applicant (Respondent in Appeal)

and

Geree Misir and Rajendra Narine (a.k.a. Hardial Singh) Respondents (Appellants)

Counsel

For the Appellants: David Reiter, Selwyn Hicks and Brian Chung

For the Respondent: Abba Chima

Heard: August 18, 2017

On appeal from: The order of Justice Edward M. Morgan of the Superior Court of Justice, dated July 19, 2016 and the order of Justice Peter J. Cavanagh of the Superior Court of Justice, dated November 23, 2016.

Costs Endorsement

[1] The appellants were successful on appeal. The result was that an order reinstating a default judgment and an order permitting the sale of certain property, were set aside. The appellants seek costs of the appeal and the proceedings in the court below.

[2] The appellants were self-represented throughout the proceedings, until a few months before the appeal was argued, and they obtained leave to deliver a fresh as amended notice of appeal, and a supplementary factum and other materials were also filed.

[3] As we noted in our reasons allowing the appeal, "the record [was] voluminous and contained affidavits from the parties with contradictory accounts of misconduct and subterfuge on all sides in connection with the litigation." Ultimately it was unnecessary for this court to attempt to reconcile the conflicting accounts. The appeal was allowed because of the respondent's failure to make full and fair disclosure of material facts (concerning the appellants' alleged default and participation in the action) when he and his then counsel attended before the court without notice to the appellants, resulting in the reinstatement of a default judgment.

[4] Although this ground was pursued in argument before us, the appellants' focus, in their written materials, even after they retained counsel, was on challenging the factual findings in the court below (which would have required the demonstration of a palpable and overriding error).

[5] Their claim for costs on a substantial or full indemnity scale has no basis, and the partial indemnity claim for costs (of almost $50,000) is excessive and disproportionate. The appellants' own approach to the proceedings contributed in no small measure to unnecessary expense in the litigation and the appeal.

[6] For these reasons, we award the appellants costs of $5,000 for the appeal, inclusive of disbursements and applicable taxes, and no costs in the Superior Court proceedings.

[7] Finally, the sum of $19,430 that was paid into court by the appellant pursuant to the order of Huscroft J.A. dated January 9, 2017, and filed as Account No. 544198, shall be released to the appellant forthwith.

"S.E. Pepall J.A."

"K. van Rensburg J.A."

"G.T. Trotter J.A."