Court of Appeal for Ontario

Citation: 2012 ONCA 616 Date: 2012-09-19 Docket: M41280 (C49094)

Before: Cronk and Epstein JJ.A. and Strathy J. (ad hoc)

Between:

Kersasp Shekhdar Plaintiff (Appellant)

and

K&M Engineering and Consulting Corporation, Freewills, Inc., Freewills.com (U.S.), Inc., William Kappaz, Regina Guerin, Freewills.com (Bermuda) Limited also known as Freewills.com (Bermuda) Ltd., Freewills.com (Canada) Inc. and 3693759 Canada Inc. Defendants (Respondents)

Counsel: Kersasp Shekhdar, in person Matthew G. Moloci, for the respondents

Heard in writing: July 23, 2012

ENDORSEMENT

[1] Mr. Shekhdar seeks to set aside or vary this panel’s order of March 20, 2012. He has provided written materials that include his notice of motion, two affidavits, (one in reply to the materials of the responding parties) and a factum. As will be explained, given the nature of the relief sought and the materials filed, we are of the view that there is no need to bring the panel and the parties together through teleconference for oral submissions.

[2] The history of this appeal is disturbing – marked by numerous motions giving rise to a significant expenditure of resources and causing unnecessary delay.

[3] In the order Mr. Shekhdar asks this panel to review, we dismissed his motion to review the October 25, 2011 order of Blair J.A. of this court. Mr. Shekhdar’s challenge to that order was based on his concern over the amount he has been ordered to pay for transcripts. This concern stems from a change in the cost of the transcripts from the amount approximated in the order of Blair J.A. dated January 14, 2011 and the revised costs that formed the basis of his order of October 25. As explained in our endorsement of March 20, 2012, we saw no basis upon which to interfere with the October 25 order. The decision of Blair J.A., who is the case management judge of this “now long-pending appeal”, concerning the payment of the costs of the trial transcripts was well within his discretion and is entitled to deference.

[4] In his affidavit filed in support of this motion Mr. Shekhdar purports to provide updated information concerning the costs of the transcripts – information that he says provides reason to question the order he asks us to review and, it would follow, the above-referenced orders of Blair J.A.

[5] In our view, Mr. Shekhdar’s affidavits in support of this motion should not be considered. The affidavits are not in compliance with a number of the Rules of Civil Procedure, including rules 4.06(2) and 25.11. Of particular concern is that both of Mr. Shekhdar’s affidavits are replete with intemperate language and accusations that counsel involved in these proceedings have conducted themselves in a manner that amounts to serious professional misconduct. Mr. Shekhdar provides no evidence in support of these accusations. His allegations are based on speculation and conjecture. Mr. Shekhdar’s affidavits are scandalous and vexatious and are struck.

[6] The lack of evidence in support of the motion and the obvious lack of merit of the motion itself, given the issue raised and the discretionary nature of the orders that form the foundation of Mr. Shekhdar’s quarrel over the costs of transcripts, lead only to one conclusion. The motion has no merit. It is therefore dismissed.

[7] Mr. Shekhdar is ordered to pay the respondents’ costs of this motion, fixed in the amount of $1,200, inclusive of disbursements and applicable taxes.

“E.A. Cronk J.A.”

“Gloria J. Epstein J.A.”

“G.R. Strathy J. (ad hoc)”