Court File and Parties

CITATION: Khodeir v. Canada (Attorney General), 2009 ONCA 800

DATE: 20091112

DOCKET: C50580

COURT OF APPEAL FOR ONTARIO

Weiler, Sharpe and Rouleau JJ.A.

BETWEEN

Lucien Roger Khodeir

Plaintiff (Appellant)

and

The Attorney General of Canada

Defendant (Respondent)

Lucien R. Khodeir, acting in person

Shelley C. Quinn, for the respondent

Heard and released orally: November 5, 2009

On appeal from the order of Justice Alan C.R. Whitten of the Superior Court of Justice dated May 13, 2009.

ENDORSEMENT

[1] The appellant’s submissions focussed on the award of costs of $20,000 made against him at first instance. Although the appellant did not seek leave to appeal costs, he did acknowledge the existence of the rule and, in the circumstances asked us to dispense with compliance of it. We propose to consider the appeal as to costs on its merits.

[2] Costs awards are discretionary, as set out by s. 131(1) of the Courts of Justice Act. The discretion of the judge at first instance should not be interfered with lightly. Unless the judge has proceeded on an erroneous principle of law or the costs award is not proportional to the amount in issue the court cannot intervene. The factors to be considered are set out in rule 57.01(1). It is apparent that the judge fully considered the applicable factors, and his decision was within his discretion.

[3] Although the appellant submits costs should not have been awarded against him because he raised a novel point of law, the point raised by him was not so much novel as ill-conceived.

[4] The appellant’s argument relying on rules 63.01(1) and 63.03(2) is erroneous since the former rule deals with a stay of any order that provides for the payment of money. The order appealed was with respect to striking his claim and not for payment of money.

[5] The appellant also submits that the judge at first instance was biased and had no jurisdiction. These grounds of appeal have no merit. Finally, the appellant submits that the judge at first instance erred in striking his statement of claim on the basis that it is plain and obvious that his action could not proceed. We are in substantial agreement with the reasons given by the motions judge for striking the claim. Accordingly the appeal is dismissed.

[6] The Attorney General has indicated that it will not be seeking costs of this appeal.

“K.M. Weiler J.A.”

“Robert J. Sharpe J.A.”

“Paul Rouleau J.A.”