ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-CV-390165
DATE: July 20, 2012
BETWEEN:
Deepak Mittal
Applicant
- and -
Pushap Jindal, Ashwani Sood and AAA Holdings Ltd.
Respondents
COUNSEL:
• Neal H. Roth for the Applicant
• Mauro Carabetta for the Respondents Pushap Jindal and AAA Holdings Ltd.
• David Shiller for the Respondent Ashwani Sood
HEARING DATE: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[ 1 ] By Reasons for Decision reported 2012 ONSC 3568 , I dismissed two motions. My initial conclusion was to make costs in the cause, but Mr. Ashwani Sood asked that I consider the matter of costs. The parties accordingly made submissions in writing. Having considered the parties’ submissions, I order costs in the cause. What follows are my Reasons.
[ 2 ] Mr. Sood brought a motion to enforce a Settlement Agreement. I dismissed the motion. As part of my order, I converted a winding-up application brought by Dr. Deepak Mittal into an action, in which Dr. Mittal was to be plaintiff and Mr. Sood and Mr. Pushap Jindal were to be defendants with counterclaims and crossclaims. I deferred the issue of the enforcement of the settlement agreement to that action.
[ 3 ] At the time of Mr. Sood’s motion to enforce a settlement, Dr. Mittal brought a motion for an interlocutory order: (1) restraining Mr. Sood and Mr. Jindal from transferring their shares in AAA Holdings; (2) requiring AAA Holdings to retain an auditor to prepare annual financial statements from 2005 to date; and (3) restraining AAA Holdings from business transactions in excess of $5,000 without Dr. Mittal’s written consent. I granted Dr. Mittal’s motion only to the extent of continuing until trial the interim order made by Justice Grace on consent. I otherwise dismissed the motion, which accomplished very little, if anything.
[ 4 ] I think it is fair to say that there were no real winners or losers on the motions because the merits of the underlying action remain to be determined, the parties are more or less starting over with an action, and the enforceability of the settlement agreement will resurface as a defence in the action.
[ 5 ] At the time of my Reasons for Decision and again now, it was my thought that the technical winners of the two motions might ultimately be the losers at the trial and since the technical winners’ success on the motion was so modest that the appropriate order was to make costs in the cause.
[ 6 ] Mr. Sood thought differently for two reasons.
[ 7 ] First, Mr. Sood submitted that he should get costs because before his unsuccessful motion seeking to enforce the settlement, he had delivered an offer to settle his own motion by having the matter of the enforcement of the settlement agreement determined at trial.
[ 8 ] Second, Mr. Sood submitted that he should get costs from Mr. Jindal because although Mr. Jindal vigorously opposed the motion by filing three lengthy affidavits and conducting cross-examinations, he did not deliver a factum and he instructed his counsel to make no submissions at the hearing of the motion, apart from indicating that the motion was being opposed.
[ 9 ] Mr. Sood submits that $42,911.36 is a reasonable amount that should be paid by Dr. Mittal and Mr. Jindal given the offer to settle and Mr. Jindal’s conduct and that Mr. Jindal be ordered to pay a further $16,000 for the period before August 24, 2011, which is the date of the offer to settle. In the alternative, Mr. Sood submits that Mr. Jindal be ordered to pay him the costs of the motion fixed at $24,860.00.
[ 10 ] Neither of these reasons moves me to change my mind about making costs in the cause.
[ 11 ] Mr. Sood lost his motion, and from the perspective of the other parties, the outcome of the motion in, practically speaking, requiring the parties to start over and deferring everything, not just the issue of the settlement to a trial is a better outcome than the offer to settle. But, in any event, it still seems most fair to tie the costs of the motions to success at the trial.
[ 12 ] Mr. Sood accuses Mr. Jindal of capitulating at the hearing by making no submissions to oppose the enforcement of the settlement and says a vigorous defence followed by an effective capitulation caused him to incur extra costs for which he should be indemnified. The glaring flaw in this submission is that, technically speaking, Mr. Jindal won the motion, and it even remains to be seen whether Mr. Sood will succeed at trial in enforcing the settlement agreement.
[ 13 ] Mr. Sood should consider himself fortunate that he will be able to claim the costs of the misadventure of his motion should he succeed at trial.
[ 14 ] I note that Mr. Jindal and AAA Holdings submitted that Mr. Sood should not get costs because he failed to ask for them at the hearing of the motions. I do not agree. In the circumstances of this case, where I reserved judgment, I think that it was appropriate for Mr. Sood to ask for costs. However, for the above reasons, I persist in my conclusion that costs should be in the cause.
[ 15 ] For his part, ignoring the fact that he was largely unsuccessful on his own motion for interlocutory relief, Dr. Mittal seeks costs of $73,832.99 as the successful party on Mr. Sood’s unsuccessful motion.
[ 16 ] Dr. Mittal’s success, if any, is a technical success, and I do not think it fair that he should recover any costs for beating back the enforcement of the alleged settlement agreement unless he succeeds at trial.
[ 17 ] Accordingly, I order costs of the motions in the cause.
[ 18 ] I order that there should be no costs awarded with respect to the claims for costs.
[ 19 ] Finally, I note that in correspondence accompanying the costs submissions, Dr. Mittal asked that I consider amending a term in the order of Justice Grace in this matter. This request is not properly before the court, and I am ignoring it.
Perell, J.
Released: July 20, 2012
COURT FILE NO.: 09-CV-390165
DATE: July 20, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Deepak Mittal
Applicant
‑ and ‑
Pushap Jindal, Ashwani Sood and AAA Holdings Ltd.
Respondentss
REASONS FOR DECISION
Perell, J.
Released: July 20, 2012.