Rhea Sharma

Following the dismissal of the plaintiffs' action against the defendants Ashok and Usha Badhwar in the trial decision indexed as 2024 ONSC 7285, the Badhwars sought costs of the action.

The defendants were represented at trial by their daughter-in-law, Rhea Sharma, a lay representative, rather than by counsel.

The court considered the principles established in Girao v. Cunningham regarding costs awards to self-represented litigants and lay representatives.

The court awarded costs to the Badhwars despite the absence of formal legal representation, recognizing that Ms. Sharma had devoted significant time and effort to the case and that the Badhwars were vulnerable parties who required assistance.

The plaintiffs sought to enforce a guarantee, promissory note, and mortgage against Ashok and Usha Badhwar, parents of a primary debtor, for a debt of over $1.3 million.

The defendants raised defences of non est factum, undue influence (for Usha), and failure to demand payment on the guarantee.

The court found that the plaintiffs knew or ought to have known of the parents' lack of sophistication and English language skills, and Usha's susceptibility to undue influence.

The certificate of independent legal advice obtained by the plaintiffs was deemed fatally flawed and insufficient to protect them from these equitable defences.

Additionally, the court found the guarantee to be a demand guarantee, and the plaintiffs failed to make a formal demand before commencing the action.

Consequently, the court dismissed the plaintiffs' action, set aside the guarantee, promissory note, and mortgage, and ordered the mortgage removed from the parents' property title.