Court of Appeal for Ontario

Date: 2018-05-16 Docket: C64498

Judges: Lauwers, Benotto and Nordheimer JJ.A.

Between

Sri Guru Nanak Sikh Centre Brampton Plaintiff (Respondent)

and

Rexdale Singh Sabha Religious Centre, a.k.a. Rexdale Singh Sabbha; Sikh Spiritual Centre Toronto, a.k.a. Sikh Spiritual Religious Centre Defendants (Appellant)

Counsel

Mark Wiffen, for the appellant

Pathik Baxi, for the respondent, Sri Guru Nanak Sikh Centre Brampton

Jordan Nussbaum, for the respondent, Rexdale Singh Sabha Religious Centre

Heard: May 14, 2018

On appeal from the judgment of Justice Cynthia Petersen of the Superior Court of Justice, dated October 20, 2017 with reasons reported at 2017 ONSC 6252.

Reasons for Decision

[1] The defendant, Sikh Spiritual Centre Toronto, appeals from the judgment of the motion judge refusing to set aside the consent order of Justice Mark Edwards dated February 4, 2016 that enforced a settlement between the parties. At the conclusion of the hearing, we dismissed both the main appeal and the costs appeal with reasons to follow. We now provide those reasons.

[2] The action concerns three not-for-profit charitable corporations that operate Sikh Gurdwaras (Sikh temples) in the Greater Toronto Area. The action arose because of a default in repayment of monies loaned by the plaintiff temple to both defendant temples, one of which is the appellant.

[3] In or around late 2015, all three parties entered into a settlement regarding repayment of the loan monies, which was converted into a court order obtained on consent and dated February 4, 2016.

[4] On November 3, 2016, the appellant brought a motion to set aside the settlement on the basis that the settlement was entered into without its authority. Alternatively, the appellant submitted that the court should exercise its discretion not to enforce the settlement because it was improvident. Finally, the appellant also seeks leave to appeal the substantial indemnity costs order that was made against it.

[5] The motion judge gave very lengthy reasons for her decision. She reviewed, in detail, the factual background of this matter including how the loan came about, the commencement of the litigation, and the steps that were taken that led to the settlement. The motion judge concluded that the settlement had been entered into by a Director of the appellant who was authorized to do so. The motion judge also pointed out that the appellant was represented by counsel throughout the proceeding, including all aspects of the settlement. Finally, the motion judge concluded that there was no proper basis for her to exercise her discretion not to enforce the settlement. It was clear, in the motion judge's view, that the appellant had borrowed the monies in question and that the settlement, by which most of the monies were to be repaid over time, was a reasonable one.

[6] The conclusions reached by the motion judge are entitled to deference by this court. Given that those conclusions reflect findings of fact, this court can only interfere if the appellant demonstrates that the motion judge has made palpable and overriding errors: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The appellant has failed to do so in this case. It is not the role of this court to reweigh the evidence or to substitute our view of the evidence for that of the judge of first instance.

[7] There was ample evidence for the motion judge's conclusion that the Director, who gave instructions to the appellant's lawyer to enter into the settlement agreement, had authority from the appellant's Board of Directors to do so. In the motion judge's view, given the state of the records of the appellant, the failure to find a resolution or minute of a meeting evidencing that authority was not fatal. Minutes from Board meetings, taken together with the evidence of the Director and the contemporaneous correspondence from the appellant's counsel, all provided support for that conclusion.

[8] There was also a foundation supporting the motion judge's conclusion that there was no proper basis to exercise her discretion not to enforce the settlement. The respondent agreed to take a slight compromise in the amount owed, and to have it repaid over time, in order to effect a settlement. It was a perfectly reasonable compromise for both parties to reach. There was nothing improvident in the settlement.

[9] The appellant also seeks leave to appeal the substantial indemnity award of costs made by the motion judge. Costs awards on the higher scale should be rare and exceptional: Mortimer v. Cameron (1994), 17 O.R. (3d) 1 (C.A.) at p. 23. In the circumstances of this case, we would not interfere with the discretion of the motion judge in respect of her decision on costs.

[10] The appeal is dismissed. While leave to appeal costs is granted, the costs appeal is also dismissed. The respondent, Sri Guru Nanak Sikh Centre Brampton, is entitled to its costs of the appeal in the agreed amount of $7,500 inclusive of disbursements and HST. The respondent, Rexdale Singh Sabha Religious Centre, is entitled to its costs of the appeal in the agreed amount of $4,000 inclusive of disbursements and HST.

P. Lauwers J.A.

M.L. Benotto J.A.

I.V.B. Nordheimer J.A.