CITATION: Narayan et al. v. Dhillon, 2021 ONSC 2461
COURT FILE NO.: DC-19-85
DATE: 2021-04-06
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
CHANDRA NARAYAN, ANEAL DARSHAN RAMKISSOON (AKA ALLAN RAMKISSOON), OMISHA OMANA RAMKISSOON, ANEAL DARSHAM RAKISSOON, AIRSIDE SECURITY ACCESS INC. AND TONY VACCERELLO
Defendants (Appellants)
- and –
SONYA DHILLON
Plaintiff (Respondent)
COUNSEL:
O. Chaudhry, Counsel for the Defendants (Appellants)
Edward Brogden, Counsel for the Plaintiff (Respondent)
Costs Endorsement
D.E HARRIS J.
[1] I previously allowed the Appellants’ defendants appeal from the Small Claims judgment against them: 2020 ONSC 7273. Of the defendants, only Airside and Tony Vaccarello were not in default and were properly before the court. These Appellants now ask for partial indemnity costs of $12,389.52.
[2] There were numerous grounds argued at the appeal. I found none had merit except for the exclusion of Chandra Narayan, the instructing client, from the courtroom for the plaintiff’s case.
[3] The Respondent asserts that the appeal was allowed due to a “minor procedural point only.” That is incorrect. If the instructing client’s exclusion from the courtroom had been a technical issue only, the appeal would have been dismissed. Contrary to this, it was held that the exclusion led to a miscarriage of justice. It was a procedural error but it was not technical or minor.
[4] I should also add that counsel for the Appellants puts considerable blame on counsel for the Respondent for the exclusion as it is apparent that if he had not insisted on it, the trial judge would not have made the order. While this is true, the legal error originated from the trial judge, not from counsel.
[5] Costs under Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, are guided by the principles of fairness and reasonableness: Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.); Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (Ont. C.A.). Proportionality is also important following Rule 1.04(1.1):
Proportionality
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
[6] In my view, the following observation from Justice Rathushny in another Small Claims appeal matter is pertinent:
[7]… the principal factor influencing the quantum of costs is that this action arose in Small Claims Court and involved a damages award of $7,000. That, of course, is the factor of “the amount claimed and the amount recovered in the proceeding” referred to in Rule 57.01(1)(a).
[8] While it was the appellant’s right to appeal and it succeeded on grounds of errors of law on its appeal, in my view it is disproportionate to the original amounts in issue (Rule 57.01(1)(a)) and the degree of complexity in the proceeding (Rule 57.01(1)(c)) to claim, as the appellant has, a costs amount over three times greater than the $7,000 originally awarded.
Transport Training Centres of Canada v. Wilson, 2010 ONSC 2714, 263 O.A.C. 226 (Ont. Div. Ct.)
[7] This matter was originally a claim for $6000 but the ultimate award was for $23,000. Nonetheless, there is a stark disproportionality in my view between the amount of the original loss to the plaintiff and the costs award requested by the Appellants.
[8] I agree with the Respondent that because original counsel for the Appellant’s was not available on the hearing date, there has been some duplication of effort for which the Respondent ought not to be burdened. This is difficult to quantify. Also, the hearing is listed in the Appellant’s dockets as 8:00 a.m. to 1:00 p.m. when it commenced at 10:00 a.m., not at 8:00 a.m.
[9] The Respondent also argues that success on the appeal was divided. I do not agree. The object of an appeal is to overturn the lower court judgment and, at the least, to obtain a new trial. The Appellant’s achieved this result. It is some relevance that the other grounds of appeal were unsuccessful but that does not amount to it being correct to characterize success as being divided.
[10] The main issue that must be reckoned with in this costs endorsement is the effect of the conduct of the Appellants as found by the Deputy Judge. I agree with the Deputy Judge’s findings at trial that the plaintiff Respondent had been unfairly treated by the Appellants. Her wages had been withheld on a patent pretext. He said,
I am convinced, that the heavy reliance on the late submission of invoices by the plaintiff, in the absence of any considerable value of them in determination of the pay is an excuse to wriggle out of the responsibility and a sheer tactic to frustrate the plaintiff’s claims in the present matter.
Dhillon v Narayan, 2019 110825 (ONSCSM) at p. 15
[11] With respect to the conduct at trial, the Deputy Judge held,
Throughout these proceedings the defendants have been evasive and have been caught lying on various occasions. It has been established that the defendants acted maliciously and in bad faith during the tenure of the Plaintiff Ms. Sonya’s employment with them.
Dhillon v Narayan, 2019 110825 (ONSCSM) at para. 24
[12] As I noted in the judgment, there were two other employees called as witnesses at trial who were treated in a similar shabby manner as the Respondent was by the Appellants. They were not paid their wages and then when they repeatedly complained, they were terminated just as the Appellant was.
[13] Under Rule 57.01, costs generally follow the event. This is the reasonable expectation. Only in rare and exceptional cases should the successful party be deprived of their costs: Georgian Bluffs (Township) v. Moyer, 2012 ONCA 700 (Ont. C.A.) at para. 21. Cause is required. In 1318706 Ontario Ltd. v. Niagara (Regional Municipality), 2005 16071 (ON CA), [2005] O.J. No. 1907, 75 O.R. (3d) 405 (Ont.C.A.) the Court of Appeal adopting from Larter v. Universal Sales Ltd. (1991), 1991 4077 (NB CA), 50 C.P.C. (2d) 66 (N.B. C.A.), at 67-68 said at para. 50 that cause includes, (1) misconduct of the parties, (2) miscarriage in the procedure, or (3) oppressive and vexatious conduct of proceedings.
[14] In this case, I believe cause is demonstrated. The principal defence purpose at trial was obfuscation. It was argued that the failure to provide invoices disentitled the plaintiff to relief. As noted above, the Deputy Judge found, and I agree with his conclusion, that this was a ruse to attempt to justify not paying the plaintiff for work she had done. There was no substantive defence tendered beyond this rather transparent diversion. The trial was fought on the ground that the plaintiff was an independent contractor, not an employee. If an independent contractor, it was posited that the personal defendants would not be liable. This would leave the plaintiff with no source of relief as the corporate entity has no assets and is judgment proof. This litigation was a discreditable attempt to put obstructions between the plaintiff and her rightful claim to the $6,000 she was owed for her work.
[15] The Appellants succeeded on this appeal on a purely procedural ground, albeit an important one that went to the heart of the fairness of the process. The other arguments were devoid of merit and were rejected.
[16] The trial and appellant proceedings cannot be separated. Both the trial and the appeal should be considered as one course of litigation. In the circumstances, the Appellants’ frivolous and vexatious position at the trial leads to the conclusion that it was not a reasonable expectation that they would recover their costs on this appeal: B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 115 (SCC), [1994] S.C.J. No. 24, [1995] 1 S.C.R. 315.
[17] For these reasons, no costs are ordered.
D.E HARRIS J.
Released: April 6, 2021
CITATION: Narayan et al. v. Dhillon, 2021 ONSC 2461
COURT FILE NO.: DC-19-85
DATE: 2021-04-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CHANDRA NARAYAN, ANEAL DARSHAN RAMKISSOON (AKA ALLAN RAMKISSOON), OMISHA OMANA RAMKISSOON, ANEAL DARSHAM RAKISSOON, AIRSIDE SECURITY ACCESS INC. AND TONY VACCERELLO
Defendants (Appellants)
- and –
SONYA DHILLON
Plaintiff (Respondent)
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: April 6, 2021