Beard Winter LLP v. Shekhdar, 2015 ONSC 4517

CITATION: Beard Winter LLP v. Shekhdar, 2015 ONSC 4517

DIVISIONAL COURT FILE NO.: 29/15 and 82/15 DATE: 20150817

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

BEARD WINTER LLP

Plaintiff/Appellant

– and –

KERSASP SHEKHDAR

Defendant/Respondent

G. Tighe and R. Winter Stein, for the Plaintiff/Appellant

In person via Conference Call

HEARD at Toronto: June 29, 2015

Harvison Young J.

[1] The appellant plaintiff Beard Winter seeks to set aside a portion of Master Short’s reasons for decision dated December 31, 2014. The Master varied the terms of an earlier order with respect to the payment by the defendant Shekhdar of certain outstanding costs owing to Beard Winter. It also seeks to set aside a costs order made by the Master in the December 31, 2014 decision.

[2] The defendant Shekhdar also appeals from the Master’s December 31, 2014 order. He seeks to set aside the order for discontinuance pursuant to the December 2014 decision. He also seeks to increase the costs ordered payable to him in that decision from the $1,000 Beard Winter was ordered to pay. For the sake of simplicity, in these reasons I will refer to Beard Winter as the plaintiff and Mr. Shekhdar as the defendant.

[3] There is a very long and tortured history to the litigation between these two parties. For the purposes of this motion, the relevant facts may be very briefly summarized.

[4] Mr Shekhdar retained Mr. Harason of Beard Winter to represent him in a wrongful dismissal claim against his former employer. He was unsuccessful at trial on the basis of a finding that the court lacked jurisdiction over the contract of unemployment, a finding which was reversed on appeal resulting in a second trial. By the time the second trial began, relations had deteriorated between Mr. Shekhdar and Mr. Harason. He represented himself at his second trial before Thorburn J. which took place in 2008. Although he was successful, he recovered only a modest portion of the amount he had claimed. In the meantime, Beard Winter had been removed from the record and in 2007 had begun an action against Mr. Shekhdar for the recovery of $132,102.56 in fees it claimed was owing by Mr. Shekhdar (the “Fee Recovery Action”). Mr Shekhdar subsequently commenced a professional negligence action against Beard Winter and Mr. Harason in June 2008 (the “Negligence Action”). Master Short was appointed as the Case Management Master with respect to both the Fee Recovery Action and the Negligence Action in approximately May 2008.

[5] This litigation has been highly emotional and has occasioned numerous motions before numerous judges as well as a number of appeals and attempts to appeal.

[6] The appeals presently before this court arise out of two separate motions heard by the Master which resulted in the two sets of reasons that form the basis of the appeals heard today.

The first motion

[7] The reasons dated April 2, 2014 arose from a motion brought by the plaintiff Beard Winter to (inter alia) strike Mr. Shekhdar’s statement of defence (of the Fee Recovery Action) on the basis that he had failed to pay costs orders made against him in the course of a number of previous motions. The Master declined to strike the defence on the basis that it would not be:

just in the circumstances to strike out, or in any way limit Mr. Shekhdar’s defence [of the Fee Recovery Action]. This is the Beard Winter action against him for additionally claimed fees, bringing the total paid or payable by him to an amount in the vicinity of a quarter million dollars. (April 2. 2014 Reasons, para. 108).

[8] The Master did, however, make the following direction pursuant to subrule 57.03(2) of the Rules of Civil Procedure:

I am directing that he pay the sum of $5000 towards those costs awards within 90 days of the release of these reasons. If that balance is paid the balance then outstanding shall be payable upon the final determination of the claims asserted in the Beard, Winter 2007 action. (April 2, 2014 Reasons, para. 111).

[9] In the course of argument on the motion to strike, Mr. Shekhdar requested that the Master recuse himself. The Master provided oral reasons declining to do so at the time, and fuller reasons in his written decision dated April 2, 2015. Mr. Shekhdar complied with the payment terms of the dismissal of the motion to strike, paying the $5000 as directed. Between April and September, the Master held a number of case conferences by telephone with a view to moving the matter to trial

The second motion

[10] The reasons dated December 31, 2014 arose from a motion brought by Beard Winter on September 29, 2014 (a date that had been set aside to hear motions arising out of the April 2, 2014 reasons), seeking leave to discontinue the Fee Recovery Action without costs. According to the motion record filed, and as noted by the Master, this was brought on the basis that “the plaintiff does not believe that there is any realistic possibility that it could ever collect on any judgment it may obtain in the within action.” Beard Winter asserted in its motion that it held numerous costs awards which had been made in the action totaling $37,500 which remained unpaid.

[11] The Master allowed the motion to discontinue. Both parties made submissions as to costs.

[12] The Master reviewed the law applicable to costs on such motions and the submissions of the parties and concluded that

having considered the submissions of both sides, and what I regard as the equities between the parties at this stage, I have decided not to make any cost award at this time with respect to the discontinuance of the 2007 action [the Fee Recovery Action] save and except an amount for costs of this motion reflecting probable out of pocket expenses (December 31, 2014 Reasons, para. 51).

[13] The Master awarded the sum of $1,000 to Mr. Shekhdar as a “nominal” amount towards the obvious actual costs incurred by Mr. Shekhdar, for printed materials, courier expenses, long-distance phone charges etc.

[14] He then referred to para. 111 of his April 2, 2014 reasons and stated as follows:

I wish to clarify, that I do not regard the allowance of the discontinuance of the 07 action as being a “final determination of the claims asserted” in that action for the purpose of paragraph 111. Instead, as a further condition of the discontinuance, I am directing that the ultimate determination of that liability is also deferred to the trial judge hearing the 08 action. (December 31, 2014 Reasons, para. 54).

These Appeals

[15] Both Beard Winter and Mr. Shekhdar appeal from the order dated December 31, 2014. For reasons that will become clear, however, the April 2, 2014 order is integrally related to these appeals.

[16] Beard Winter challenges two aspects of the December 31, 2014 order. First, it submits that the Master had no jurisdiction to vary the cost order made on April 2, 2014. It argues that the functus officio doctrine applies and, in addition, it submits that he did not have the jurisdiction to make the April 2, 2014 order which essentially varied previous costs orders made by justices of the Superior Court. The December 2, 2014 order was thus also made without jurisdiction.

[17] Second, Beard Winter submits that the Master erred in ordering costs payable in the amount of $1,000 to Mr. Shekhdar on the discontinuance motion because no motion for costs was made and thus, Rule 23.05 in its present form was not complied with. Additionally, there was no evidence before the Master that could form the basis for such an award.

[18] In his Notice of Appeal, which he insisted be treated as a separate appeal rather than a cross appeal, Mr. Shekhdar takes issue with the discontinuance, arguing that the Master’s decision is “devoid of reasoning” in that it fails to explain why:

…a party may bring a lawsuit against someone, hound and plague that person for seven years, and the be allowed to discontinue their lawsuit without costs to their victim…despite the fact that said cause has never been put to any legal test or examination, let alone the proper test of a trial with documentary evidence and cross-examination.

[19] Mr. Shekhdar’s Notice of Appeal also raises a number of other issues. He submits that Gardiner Roberts LLP was never “appointed or nominated as agent for the instant action by party Beard Winter LLP”, asserting that Master Short “falsified his decision in writing that they are such agents.” Mr. Shekhdar did not press this argument in his oral submissions. The issue was argued before the Master who determined that there is nothing improper about a lawyer of record appointing an agent to argue a specific motion. I agree that there is no merit to this ground of appeal and I will not refer to it further in the course of these reasons.

[20] Mr. Shekhdar also submitted in his Notice of Appeal that Master Short had committed a palpable and overriding error by deciding the discontinuance motion after both parties delivered correspondence to Master Short seeking his recusal as Case Management Master with respect to the Fee Recovery Action while the discontinuance motion was under reserve. His argument appears to be that the Master’s jurisdiction had ceased as of December 22, 2014 on which date Mr. Shekhdar had delivered correspondence to the Master indicating that he was consenting to a recusal request that Gardiner Roberts had made earlier on behalf of Beard Winter and Mr. Harason as a result of scandalous personal attacks that Mr. Shekhdar had made with respect to Master Short. Again, this issue was not pursued during oral argument before me. Neither party had objected to Master Short hearing the discontinuance motion on September 29, 2014 and I see no basis in law to support Mr. Shekhdar’s submission on this point. A Master’s jurisdiction cannot be displaced by a party’s recusal request or an agreement between the parties. I will not return further to this issue.

[21] Mr. Shekhdar’s Notice of Appeal also takes issue with the fact that he had scheduled a motion to strike which the Master did not address, having determined that it was not necessary because he granted Beard Winter’s (subsequent) motion to discontinue. There is no merit to this ground of appeal.

[22] I note, however, that Mr. Shekhdar’s oral submissions with respect to his appeal focused on the Master’s failure to award him costs on the discontinuance motion. He argued that the Master failed to consider affidavit evidence that had been filed, thereby committing a palpable and overriding error. Although he insisted on treating the two appeals separately, his oral submissions raised his dissatisfaction with the result of the discontinuance motion much more in the course of his response to the Beard Winter’s appeal than in the course of submissions with respect to his own his appeal. His oral submissions concentrated on the Master’s decision to limit his costs to $1000 in disbursements on the basis that he had not shown a loss of opportunity to earn income.

Standard of Review

[23] The standard of review is as set out in Housen v. Nikolaisen, [2002] 2. S.C.R. 235 and Zeitoun v. Economical Insurance Group, 2008 20996 (ONSC) (Div.Ct.), as affirmed, (2009) 2009 ONCA 415, 96 O.R. (3d) 639 (ONCA). A decision will be interfered with only if the Master made an error of law or exercised his or her discretion on the wrong principles or misapprehended the evidence such that there is a palpable and overriding error.

Law and Analysis

[24] Beard Winter submits that the Master’s variation of his earlier costs decision constituted an error in law for a number of reasons. First, it submits that this issue was not before the Master as the only relief sought on the September 29, 2014 motion was leave to discontinue without costs. Neither party made any submissions regarding any variation of the earlier order. Mr. Shekhdar submits that because Master Short was a Case Management Master, he had a broader jurisdiction and was “responsible for his/her entire body of various decisions and endorsements with a view to keeping them consonant and harmonious.”

[25] Second, Beard Winter submits that the Master was functus officio with respect to his April 2, 2014 reasons with respect to the outstanding costs orders, and moreover, he had no jurisdiction to vary or amend the costs orders as he purported to do in the April 2, 2014 or December 31, 2014 orders. Again, Mr. Shekhdar submits that this is not so with respect to the role of a Case Management Master.

[26] Third, Beard Winter submits that the Master committed a palpable and overriding error in awarding costs of the discontinuance motion to the respondent when it was successful in its motion.

[27] Having considered the parties’ submissions and the reviewed the materials and authorities submitted to me, I conclude that the appellants should succeed on the first two of these issues but not on the third.

Issue 1. Did Master Short err in law by varying paragraph 111 of his April 2, 2014 Reasons for Decision with respect to the payment of the various outstanding costs orders?

[28] In my view, the Master did not have the jurisdiction to vary the earlier order for two reasons. First, I agree that he was clearly functus officio with respect to his purported variation of the April 2, 2014 order in his December 31, 2014 order. Second, the Master did not have jurisdiction to vary or amend the earlier costs orders made by superior court judges and thus, they cannot stand. I will deal with these in turn.

Functus Officio

[29] The essential elements of the doctrine of functus officio as well as its exceptions were set out by Sopinka J. in the Supreme Court of Canada’s decision in the case of Chandler v. Alberta Association of Architects, 1989 41 (SCC), [1989] 2 S.C.R. 848 at page 860 as follows:

The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:

1. where there had been a slip in drawing it up, and

2. where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. v. J. O. Ross Engineering Corp., 1934 1 (SCC), [1934] S.C.R. 186.

[30] The fundamental policy rationale behind the functus officio doctrine is that for the due and proper administration of justice, there must be finality to a proceeding to ensure procedural fairness and the integrity of the judicial system. As was noted by the Supreme Court of Canada in the case of Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3:

It is clear that the principle of functus officio exists to allow finality of judgments from courts which are subject to appeal. This makes sense: if the court could continually hear applications to vary its decisions, it would assume the function of an appellate court and deny litigants a stable base from which to launch an appeal (para79).

[31] If a court is permitted to continually revisit or reconsider final orders simply because it has changed its mind or wishes to continue exercising jurisdiction over a matter, there would never be finality to a proceeding.

[32] The principle of functus officio ensures that subject to an appeal, parties are secure in their reliance on the finality of superior court decisions.

[33] Although prior case law dealing with the application of the doctrine of functus officio has generally held that in order for the doctrine to apply, the relevant order must have been “taken out” (that is to say, signed and entered), a very recent case of the Divisional Court has cast doubt on that proposition.

[34] In the case of Brown v. The Municipal Property Assessment Corp., 2014 ONSC 7137 the Divisional Court dealt with an appeal from an order in which the motion judge varied the terms of an earlier order that he had made in which he dismissed the plaintiff’s action. The variation permitted the plaintiff to file an amended statement of claim against the appellant only and also provided that the amended pleading was to be prepared by a lawyer. In discussing the doctrine of functus officio in the context of the original order which was never ‘taken out’, the Divisional Court noted the following at paras. 18-19:

There is one further salient fact that needs to be mentioned in order to fully understand the factual background to this matter. The order that the motion judge made on September 25, 2013 was never taken out. That is, the order was never signed and entered. If it had been, the motion judge would have been functus officio in terms of that order. He would have then been precluded from making any variations to that order except through the express authority given to a judge under the Rules of Civil Procedure. The two rules that the motion judge referred to are the principal rules that permit a judge to vary an order s/he has made after it is signed and entered. However, the motion judge, in this case, found that neither of those rules applied. Consequently, had the order been signed and entered, there would have been no authority for the motion judge to grant the relief to Mrs. Brown that he did. Rather, it appears that the motion judge relied on his inherent authority to change the order that arose from the fact that the order had not been signed and entered.

I do not believe that the motion judge had the jurisdiction to proceed in the manner that he did but, even if that jurisdiction existed, it was not properly exercised in this case. In my view, the mere fact that the technical requirements for the finality of the earlier order are missing, because the order was not signed and entered, does not permit a judge to vary that order in whatever manner s/he happens to consider to be appropriate at a later date. The principle of finality, that underlies the functus officio principle, weighs against that scope of authority and that type of alteration. Parties have a right to expect that once a matter is determined by a judge, it is over. Our rules of procedure do not envisage that parties will be allowed to reargue matters, except in very narrow circumstances.

[35] Regardless of whether a formal order was ever taken out with respect to the Master’s April 2, 2014 Reasons for Decision and regardless of whether the technical requirements of the doctrine of functus officio have been met, the plaintiff Beard Winter submits that the case law clearly establishes that Master Short only had the jurisdiction to vary the terms of those reasons in two limited circumstances: to correct a technical error (e.g. a type-o or an arithmetic error) or to avoid a miscarriage of justice.

[36] The same conclusion was reached by the Divisional Court in the Brown case, supra, at paras. 20-22, wherein on that issue, the Divisional Court held the following:

I acknowledge that there is a fairly broad power, in a judge, to change an order after it has been announced but before it has been signed and entered. Any such change should only be made, however, if it is either technical (e.g. to correct an arithmetic error) or it is necessary to avoid a miscarriage of justice: Clayton v. British American Securities Ltd., 1934 229 (BC CA), [1935] 1 D.L.R. 432 (B.C.C.A.) at pp. 440-441. Even then, if a change is to be made, it must be fully explained to ensure that the authority is not abused. The concern that arises from changes being made by a judge to an order, that has already been pronounced, has been expressed in other cases. For example, in Montague v. Bank of Nova Scotia (2004) 27211 (ON CA), 2004 27211 (ON CA), 69 O.R. (3d) 87 (C.A.), Goudge J.A. said that, notwithstanding the very wide discretion a judge has to change his or her judgment before it is entered, that discretion had to be exercised cautiously and for very good reasons. He commented, at para. 40:

Any change to a judgment once given, no matter how soundly based, runs the risk of evoking suspicions of abuse on the part of those adversely affected. It is at the least disquieting, and to that extent can put a cloud over the administration of justice. A judge exercising this discretion bears a significant onus to explain the change.

The onus on a judge to clearly explain the basis for a change to an order already given was repeated in 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, [2014] O.J. No. 697 (C.A.) where Gillese J.A. said, at para. 73:

A clear explanation for the change to the order was required so that the parties, and this court on review, could know the reason for the change. It was an error to fail to give that explanation.

In addition to these principles, it is also clear that the discretion to re-open a matter is one that should be resorted to “sparingly and with the greatest care”: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983 at para. 61; Clayton v. British American Securities Ltd. at p. 440.

[37] This decision in my view illustrates the rationale behind the functus officio principle. Beard Winter had brought a motion to strike Mr. Shekhdar’s defence in the 2007 action on the basis of non-payment of costs awards. It was unsuccessful in obtaining this relief, but it did obtain an order that the costs would be payable upon the “final determination” of the claims asserted in its 2007 action (the Fee Recovery Action). Clearly, Beard Winter determined that a motion to discontinue was a sensible course to take and did so in part in reliance on the April order that provided that the costs would be payable upon such discontinuance as a “final determination.”

[38] The essence of Mr. Shekhdar’s submissions on the Beard Winter appeal reflected his grounds of appeal in his own appeal: that the Master should not have discontinued the Beard Winter action to begin with. He noted repeatedly that the Master had been assuming that the matter would be going to trial, as had all the parties themselves until fairly recently. This was not a basis that could have justified refusing the motion to discontinue. While prejudice to the parties is a consideration in a motion to discontinue, there was no prejudice against him resulting from the dismissal as he was no longer in any jeopardy of paying the fees sought in the Fee Recovery Action: see Simanic v. Ross, 2004 66337 (ON SC), 71 OR (3d) 161 (2004) (ONSC). In addition, his Negligence Action remains. is, however, no basis to such an argument and the Master did not err in granting leave to discontinue.

[39] It may well be, however, that the Master varied the costs order in his December reasons to reflect the fact that he had not, in making his order in April 2014, anticipated that this matter, which had been so hard fought for so long, would be discontinued. That does not change the fact that the costs order was made and the parties were entitled to rely on it, particularly in the absence of any notice that the Master was inclined to make a different order as a term of the discontinuance. Neither party appealed the order.

Jurisdiction

[40] In addition, and more even more fundamentally, Beard Winter submitted that the Master’s April 2, 2014 costs order was made without jurisdiction because it purported to defer or vary orders that had been made by superior court judges including Campbell and Aston JJ. as well as Epstein J.A. It cited Rule 37.02(2)(b) as authority for the proposition that a Master has no jurisdiction to set aside the orders of a judge. This rule reads as follows:

37.(02) (2) A master has jurisdiction to hear any motion in a proceeding, and has all the jurisdiction of a judge in respect of a motion, except a motion, […]

(b) to set aside, vary or amend an order of a judge […] [emphasis added].

[41] I agree that there can be no question that the Master purported to vary or amend orders made by superior court judges in his April 2, 2014 costs decision which deferred the costs orders. That order on its face at the very least amended costs orders which were made by superior court judges and which were very much due and payable by purported to defer Mr. Shekhdar’s obligation to pay them until the “final determination” of the action. This costs order was therefore made without jurisdiction pursuant to Rule 37.02(2)(b). The fact that neither party appealed the April 2014 does not preclude this court from finding that it was made without jurisdiction. A nullity cannot be waived by the passage of time: see Park v. Perrier, 2005 25637 at para 25.

[42] The December 31, 2014 order was similarly made without jurisdiction. Not only did it defer payment of costs which had previously been ordered by superior court judges, it purported to render them contingent on subsequent events that might or might not occur. Moreover, the December order purported to vary the April order and its validity therefore depends on the April order. In short, the Master did not have jurisdiction to either defer the previous costs order as he purported to do in the April 2, 2014 order or to vary that order as he purported to do at para. 54 of his December 31, 2014 order.

[43] Mr. Shekhdar submitted that the Master’s role as case management judge effectively broadened his powers, permitting him to make orders that he might ordinarily not be permitted to make. I disagree. The role of case management master cannot operate so as to increase the jurisdiction bestowed on masters beyond that provided by law and I was not referred to any authorities that suggest that it can.

[44] In short, I am satisfied that the December 31, 2014 costs order cannot stand. I am satisfied both that the Master’s variation of his earlier order constituted a violation of the functus officio principle and also that both orders constitute significant variations or amendments of orders made by superior court judges and were thus made without jurisdiction. Beard Winter’s appeal from this order is therefore allowed.

[45] Thus, the unpaid costs orders against Mr. Shekhdar are still owing.

Issue 2. Did Master Short err by awarding $1,000 in disbursements to Mr. Shekhdar?

[46] Beard Winter also appeals from the Master’s decision to award Mr. Shekhdar $1,000 in costs, despite its success on the motion to discontinue. Mr. Shekhdar in his appeal also seeks greater costs than those which the Master awarded to him. I would dismiss both appeals with respect to this issue.

[47] Beard Winter argued that the usual rules that costs follow the event should prevail in the circumstances and it was entirely successful in its discontinuance motion. It pointed out that while prior to the amendments to Rule 23.05(1) on October 19, 2009, a defendant had a prima facie entitlement to the costs of an action upon discontinuance by the plaintiff, it is clear from Rule 23.05(1) that this has changed. The current rule reads as follows:

23.05 (1) If all or part of an action is discontinued, any party to the action may, within thirty days after the action is discontinued, make a motion respecting the costs of the action. O. Reg. 394/09, s. 8.

[48] The effect of the rule change was summarized by McCarthy J. in the case of Digiuseppe v. Todd, 2012 ONSC 1028 at para. 21:

I was not referred to any decision which has measured the effect of the change in the wording of Rule 23.05(1). The wording used in the previous rule certainly afforded a defendant a prima facie entitlement to costs of an action upon discontinuance by a plaintiff. A reasonable interpretation of the new rule is that it has removed the prima facie entitlement to costs in favour of a method by which either party to the action may make a motion in respect of costs within 30 days after the action is discontinued. I find that the amendment to the rule was intended to accomplish three things:

(a) to remove the prima facie entitlement of the defendant to costs;

(b) to establish a time frame within which a motion must be brought following a discontinuance, that being 30 days from the date of discontinuance; and

(c) to allow for a consideration of costs to be made in favour of either party.

[49] As Mr. Shekhdar acknowledged during his submissions, he had not been aware that the rule had changed. I agree with Beard Winter that there is no longer a presumption that a defendant in Mr. Shekhdar’s position is entitled to costs in such circumstances, and that a motion is required. However, in my view, given the submissions before the Master, it is reasonable to infer that the Master considered that Mr. Shekhdar was moving for costs. I do not think he erred in doing so.

[50] The Master awarded $1,000 as an approximation of “probable out of pocket” or disbursement costs incurred by Mr. Shekhdar for telephone, photocopies and the like. I do not accept Beard Winter’s submission that this must be set aside for absence of evidence. While there may not have been formal evidence filed on the point, this was a very reasonable approximation of disbursements, particularly given the fact that Mr. Shekhdar has generally participated by long distance telephone and it is clear that he has incurred considerable photocopy and fax charges.

Issue 3. Did the Master err in failing to award costs to Mr. Shekhdar on the basis of a lack of evidence that he had foregone the opportunity for income in order to prepare for the litigation?

[51] This issue forms a central part of Mr. Shekhdar’s appeal but I address it at this point because it also relates to the basis for the costs award on the discontinuance motion.

[52] As I have already indicated, I do not find that the Master erred in treating Mr. Shekhdar’s submissions as a “motion” within the meaning of Rule 23.05 or in awarding him $1000 for, in effect, disbursements. However, I do not accept Mr. Shekhdar’s submissions that the Master erred in failing to award him costs because he had failed to provide proof of opportunity costs given up by Mr. Shekhdar by foregoing remunerative activity. The Master applied the legal principles as set out in Fong v. Chan (1999), 46 O.R. (3d) 330, 1999 2052 (ONCA) and Mustang Investigations v. Ironside, 2010 ONSC 3444, 103 O.R. (3d) 633 (Div.Ct.). These cases stand for the principle that a self-represented litigant is not entitled to compensatory costs in the absence of evidence showing that he or she has foregone the opportunity to earn income in the course of the preparation involved for the litigation.

[53] Mr. Shekhdar argued that these cases are unfair and obsolete and “must be put out to pasture”. To the extent that these cases state the current law, and in my view there is no doubt that they do, refusing to follow them would be a clear error of law on my part. He also argued forcefully, however, that there is ample material that he has filed in the course of the litigation that provides evidence that he has foregone the opportunity to earn income in order to conduct this litigation and that he has thus met this test.

[54] The problem with Mr. Shekhdar’s argument in this respect is that he is referring not to material filed with respect to the motion before Master Short or this appeal but to materials which he claims have been filed over the last number of years. Those materials are not properly before the court on this appeal. The Master, and this court on appeal, may properly consider only the evidence that was properly before the court on the hearing of the motion. That does not include evidence that may have been filed at any other time in the course of the lengthy litigation which has included voluminous materials, unless it part of the record before the court on the particular motion

[55] Mr. Shekhdar may be in a difficult position as far as this issue is concerned because of the position he has taken in relation to his action against Beard Winter and his employment prospects. Nevertheless, a court on a motion such as that before the Master is not required to and could not possibly make such determinations on the basis of many boxes of documents filed at various times and for various purposes over a number of years which have not been specifically included in the particular record before it.

[56] In closing on this issue, I note that Mr. Shekhdar also claims that the Master “knowingly falsified his reasons for decision” in finding that he failed to provide proof of any opportunity costs given up. This is an inappropriate attack on the character and integrity of a member of the judiciary and I will not address it except to say that Mr. Shekhdar’s oral submissions were civil and respectful and, as far as this issue is concerned, concentrated on his argument that the Master should have drawn on all material presented to him over the past number of years. Accordingly, I attribute that remark to a misunderstanding of the scope of an evidentiary record which is properly before a judge on a particular proceeding, even a judge who has heard other matters relating to the same action with the same parties.

[57] In short, I find no error in principle or palpable or overriding error on the part of the Master’s award of the amount of $1,000 representing “probable” out of pocket costs to Mr. Shekhdar.

[58] Accordingly, I find no error in the Master’s award of $1000 to Mr. Shekhdar.

Costs of this motion

[59] As set out above, Beard Winter has been largely successful, both with respect to its own appeal and in resisting Mr. Shekhdar’s appeal. Beard Winter sought $13,660 with respect to its appeal and $8,967 with respect to Mr. Shekhdar’s appeal. The materials submitted were voluminous and escalated the costs of the appeal. While it is clear that addressing these issues has been time consuming, I am also of the view that as the above discussion indicates, many of the issues overlapped as between the two resulting in some time efficiencies. The motion was set down for 4 hours (with Mr. Shekhdar participating by teleconference) and was concluded within that time.

[60] Taking into account all of these factors, including Mr. Shekhdar’s limited success with respect to the $1,000 disbursement award, I find that $8,500 is reasonable in the circumstances. Accordingly, Mr. Shekhdar is to pay costs for this appeal in the amount of $8,500, payable forthwith.

___________________________ Harvison Young J.

Released: August 17, 2015

CITATION: Beard Winter LLp v. Shekhdar, 2015 ONSC 4517

DIVISIONAL COURT FILE NO.: 29/15 DATE: 20150817

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

BEARD WINTER LLP

Plaintiff/Appellant

– and –

KERSASP SHEKHDAR

Defendant/Respondent

REASONS FOR JUDGMENT

Harvison Young J.

Released: August 17, 2015