SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV 08 00364277
DATE: 20140714

RE: HAIDER HUMZA INC., MISSISSAUGA AUTO CLINIC INC. and MECCA WHOLESALE MEATS & CATERING INC.

Plaintiffs

AND:

MOHAMMED RAFIQ a.k.a. MOHAMMAD RAFIQ a.k.a. MUHAMMAD RAFIQ, SAIDA BANU RAFIQ, ZUBAID-UR-RAHMAN NAWAID HASHMI, ZARCO EXCHANGE CANADA INC., MULTIMEDIA MARKETING GROUP LTD., AJAZ KHAN, ZIA ISLAM carrying on business as PRO-TECH AUTOMOTIVE, CANADIANS CENTRAL AUTO LTD., AUTO SPECIALIST INC., SAM SANTINO carrying on business as SANTINO HAULAGE, and A AND B AUTO LEASING & CAR RENTAL INC.

Defendants

BEFORE: CHAPNIK J.

COUNSEL:
John Mullen Murray Teitel – non party
for the non-party Respondent, Aswani Datt for the Appellant (in person)

HEARD: JULY 14, 2014

ENDORSEMENT

[1] On October 30, 2012 Master Dash ordered Murray Teitel to personally pay Aswani Datt the sum of $3,000 in costs. Paragraph 10(b) of the order states:

The lawyer for the Plaintiffs, Murray Teitel, shall personally pay to the lawyer for Mohammad Rafiq, Aswani K. Datt, costs fixed in the sum of $3,000.00

[2] As a non-party, Mr. Teitel appealed the above costs order made by Master Dash; and Justice Morgan granted leave to appeal on May 30, 2013. Subsequently, the parties entered into settlement negotiations in respect of this matter. They agree that the Master’s order be set aside, but disagree on the wording of the order. In summary, Mr. Teitel requests a paragraph in the order stating that the appeal from para. 10(b) in Maser Dash’s order be allowed as well as an order that para. 10(b) in Master Dash’s order be set aside.

[3] This, he states, reflects the settlement reached by counsel. Mr. Mullen, on behalf of Mr. Datt, says he only agreed to set aside the impugned order. Indeed, according to him, his client “insists upon the wording in the body of the order that we agreed on” which stated:

It is ordered that that portion of the costs order of Master Dash, dated October 30, 2012, whereby he ordered Murray Teitel to pay to Aswani K. Datt, lawyer for Mohammed Rafiq the sum of $3,000.00 be and is hereby set aside.

[4] Mr. Teitel moves to confirm what he says is the settlement reached by the parties that includes the operative clause allowing the appeal of that portion of Master Dash’s order as well as a clause setting aside the order without costs.

[5] Upon reading the materials filed and hearing the submissions of both parties, I am satisfied that this motion to confirm that Mr. Teitel’s appeal from para. 10(b) of Master Dash’s order has been settled, should be granted and the settlement enforced.

[6] In my view, the setting aside of Master Dash’s order can only occur as a necessary consequence of allowing the appeal. In these particular circumstances, the setting aside of the order means the appeal is allowed. Whether or not this was specifically stated in the correspondence and offers exchanged by the parties, I agree with the appellant that one thing is a consequence of the other. Anything else is simply semantics.

[7] I find that, in essence, the parties (and I note that the respondent was represented by counsel throughout) were ad idem when the offers were exchanged and the settlement reached. The impugned section was to be set aside pursuant to the appeal.

[8] Accordingly, the appellant’s motion is granted and the settlement enforced. As I said at the conclusion of the hearing, I would order costs to the appellant in the sum of $2,500. However, due to the fact he has agreed to pay $500 towards Mr. Mullen’s costs, I reduce that amount to $2,000.

[9] Order to go awarding costs to the appellant as against Mr. Aswani Datt in the all-inclusive sum of $2,000 payable forthwith.

CHAPNIK

Date: July 14, 2014