SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CR-14-417-MO
AND COURT FILE NO.: 13-12451-02
DATE: 2014 08 25
SUPERIOR COURT OF JUSTICE - ONTARIO
Court File No.: CR-14-417-MO
RE: Her Majesty the Queen and Noah Gebray Kahsay (Respondents)
- and -
The Toronto-Dominion Bank (Applicant)
COUNSEL:
J. Kukla, for the Applicant
K. Stanyon, Counsel assisting the Respondent
AND Court File No.: 13-12451-02
RE: Her Majesty the Queen (Respondent)
- and -
Peel Standard Condominium Corporation NO. 939 (Applicant)
- and -
Noah Kahsay, Niat Asfaw, Almaz Reda and Abdulbasit Osman
(Opposing Parties)
- and -
The Toronto-Dominion Bank and Balvinder Randhawa
(Interested Parties)
COUNSEL:
M.S. McEachren, for the Public Prosecution Service of Canada, Respondent
A. Shaffer, for the Applicant
K. Stanyon, Counsel assisting Noah Karsay
J. Kukla, for the Toronto Dominion Bank
No one appears for Niat Asfaw, Almaz Reda and Abdulbsit Osman
BEFORE: Durno J.
C O S T S E N D O R S E M E N T
[1] When the orders were made on August 14, 2014, I indicated that I would deal with Mr. Kahsay’s arguments in regards to the legal fees for the applications in a separate endorsement. These are the reasons.
[2] I am not prepared to make any order in relation to legal fees for two reasons. First, I am not persuaded that I have jurisdiction to make orders in relation to costs on these applications. Second, if I am wrong in that conclusion, I am not persuaded that any order in relation to costs is appropriate on the expanded record.
[3] First, dealing with the jurisdiction to deal with costs at this time, there are two applications before the court. First, the Condominium Corporation applied to vary the restraint order to enforce a lien registered on March 31, 2014 pursuant to s. 85 of the Condominium Act, RSO 1990, c. C.26, and to require notice should any proceeding of any kind be taken in relation to the property except for the enforcement of the lien. Second, the Toronto Dominion Bank (“TD”) applied to vary the restraint order to permit TD:
- to enforce their mortgage;
- to permit TD to cure any default in payment of the condominium common elements, and that those amounts are added to the mortgage registered;
- to be permitted TD to discharge the condominium’s lien;
- to commence power of sale proceedings; and,
- to deal with the proceeds of the sale in accordance with the draft order.
[4] An application to remove or vary a restraint order pursuant to s. 462.34 of the Criminal Code of Canada, RSC, 1985, c. C-46 is not an appropriate forum to examine the legal fees incurred in bringing the application. The Condominium Act and Mr. Kahsay’s mortgage provide for the payment of legal costs incurred. Any dispute with respect to legal fees is more properly brought in a civil proceeding. In particular, in relation to the TD application, the Mortgages Act, R.S.O. 1990, c. M.40, s. 43 provides that: “A mortgagee’s costs of and incidental to the exercise of a power of sale … may … be assessed by an assessment officer at the instance of any person interested.” Mr. Kahsay has the right to challenge the fees under s. 43.
[5] If I am wrong in relation to the first conclusion, with the consent of all parties, having listened to the recording of Mr. Kahsay’s appearance before Daley J. on July 4, 2014, and considering the appearances before me, I am not persuaded any order limiting the legal fees is appropriate. I reach that conclusion for the following reasons.
[6] The Condominium Corporation’s application was first in court on July 4, 2014 before Daley J. A Judge’s Order had been obtained to bring Mr. Kahsay from the Maplehurst Detention Centre. The only application was before the court was on behalf of the Condominium Corporation although counsel for TD appeared. While the condominium’s material had been served on a guard at Maplehurst, Mr. Kahsay had not had an opportunity to read the material.
[7] However, he was clearly aware of what was being sought, telling His Honour it was about his condominium and maintenance fees. Mr. Kahsay told His Honour that he probably would be contesting the application. He told His Honour that efforts on his behalf to make payments were unsuccessful. He also said that he had a civil lawyer retained for all of his civil issues. He expected his counsel would be bringing an application to remove or vary the restraint order before July 25, 2014 and requested an adjournment.
[8] There was no request for any type of recommendation or order that Maplehurst give him an opportunity to read the material. When counsel for the condominium said she had proof of service on Mr. Kahsay, Daley J. told her that Mr. Kahsay would not be permitted to have all the material to take with him to his cell. His Honour told Mr. Kahsay that the matter was going to proceed on the next date and that he should have any responding material and an affidavit filed by July 18, 2014. Mr. Kahsay agreed.
[9] Daley J. ordered that an application was required on behalf of TD as opposed to piggybacking on the Condominium Corporation’s application.
[10] Coincidentally, a lawyer from Mr. Grill’s office was in court and took a copy of the Condominium Corporation’s material.
[11] On July 25, 2014, the application was before me and Mr. Kahsay said he still had not been afforded an opportunity to read the material at Maplehurst. Again, counsel for the Condominium Corporation said she had an affidavit of service stating that Mr. Kahsay had received all of the material. While not a verbatim rendition of what Daley J. had told counsel on the previous date, my comments were similar. Serving material in a jail whether by appointment or drop-in, does not mean the recipient would be able to keep and read them. I ordered Mr. Kahsay be given an opportunity to read the material and directed the application to be spoken to on August 1, 2014 at which time a hearing date would be set.
[12] Ms. Stanyon from Mr. Grill’s office appeared and said there was going to be a Rowbotham application and sought a two month adjournment. That request was vigorously opposed by the applicants. I indicated that I would direct Maplehurst to give Mr. Kahsay access to all of the materials and he was remanded to August 1 to set a date for the applications to proceed in the month of August whether Mr. Kahsay had counsel or not.
[13] On August 1, Mr. Kahsay said he had not been given an opportunity to read over the material because the jail was on lockdown for the entire week. Through the co-operation of the court security in the Davis Courthouse he was given that opportunity in the cells on August 1. Mr. Kahsay wanted to set a hearing date and did so for August 14 before he went to the cells to read over the material. Counsel for TD appeared on behalf of counsel for the Condominium Corporation and the Public Prosecution Service.
[14] When Mr. Kahsay was in the cells reading and after counsel for TD had left, Ms. Stanyon appeared and advised that Mr. Grill was going to bring a Rowbotham application as well as an application to remove the restraint order. If that succeeded it would allow all the funds owing to the Condominium Corporation and the bank to be paid which would alleviate the need for these applications. Ms. Stanyon suggested that Mr. Kahsay’s applications could be heard on September 5 along with these applications. As that was the date for the Regional Judges’ Statutory Meeting, there would be no applications scheduled for that date.
[15] Because no one was in attendance for the applicants, I suggested that Ms. Stanyon should contact the other counsel and get their positions. The date of August 14 was confirmed when Mr. Kahsay was returned from the cells having read all the material. Again, on August 1 there was no suggestion that Mr. Kahsay would consent to the applications.
[16] On August 14, 2014, the application was set to proceed. Ms. Stanyon appeared to assist Mr. Kahsay although her firm was not retained. Mr. Kahsay, through counsel, consented to the application but with three concerns. The first, dealing with the second mortgage holder was dealt with on consent.
[17] The second, with respect to his mother’s efforts to pay the funds, I find has no bearing on the applications nor the costs issue for reasons I will explain later in this ruling.
[18] The third issue was whether the applicants’ legal fees for these applications were unreasonable. Mr. Kahsay says they are excessive as there should not have been four court appearances on the application, his mother offered to pay the fees but the bank refused to accept the funds and because it was a consent order.
[19] I am not persuaded that it is appropriate to limit the costs for this application for the following reasons. First, pursuant to the Condominium Act, S.O. 1998, Chapter 19, s. 134(5):
If a corporation obtains an award of damages or costs in an order made against an owner or occupier of a unit, the damages or costs, together with any additional actual costs to the corporation in obtaining the order, shall be added to the common expenses for the unit and the corporation may specify a time for payment by the owner of the unit.
[20] Pursuant to the mortgage that Mr. Kahsay signed he is liable for legal fees pursuant to 5.03 that states:
The costs of any sale or foreclosure proceedings, whether or not the sale or foreclosure is completed, or any costs that the Bank incurs in taking or keeping possession of the property or enforcing its remedies under the mortgage, are immediately payable by you whether or not any actual proceeding is commenced.
[21] Accordingly, Mr. Kahsay is obliged to pay the costs pursuant to legislation and the mortgage he signed with the bank subject to any assessment of those fees in civil proceedings or as part of the application to vary.
[22] Second, both the Condominium Corporation and TD were anxious to proceed on each date. They kept costs down having one counsel appear on August 1, 2014. While TD tried to keep costs down by filing no material, Daley J. appropriately ordered an application to be filed.
[23] Third, while Maplehurst either ignored the order that Mr. Kahsay have an opportunity to read the material or were unable to enforce it because of the lockdown that did not result in an extra appearance because there was no request for an order on July 4. When Mr. Kahsay came to court on August 1 he had his opportunity to read the material.
[24] Fourth, Mr. Kahsay told Justice Daley that he had civil counsel retained to handle this issue and was probably contesting the order. That was his right, but asking for an adjournment to have an application brought to remove or vary the restraining order or a Rowbotham application, is hardly something that the applicants precipitated.
[25] Fifth, counsel on his behalf asked for the adjournments on July 15 and August 1, 2014.
[26] Sixth, while I accept that there were discussions and offers to pay, I cannot find fault with the Condominium Corporation or TD for the positions they took in the face of non-payment of funds owing.
[27] In all the circumstances, I am not prepared to make any order in relation to costs.
Durno J.
DATE: August 25, 2014
COURT FILE NO.: CR-14-417-MO
AND COURT FILE NO.: 13-12451-02
DATE: 2014 08 25
SUPERIOR COURT OF JUSTICE - ONTARIO
Court File No.:CR-14-417-MO
RE: Her Majesty the Queen and Noah Gebray Kahsay (Respondents)
- and -
The Toronto-Dominion Bank (Applicant)
AND Court File No.: 13-12451-02
RE: Her Majesty the Queen (Respondent)
- and -
Peel Standard Condominium Corporation NO. 939 (Applicant)
- and -
Noah Kahsay, Niat Asfaw, Almaz Reda and Abdulbasit Osman
(Opposing Parties)
- and -
The Toronto-Dominion Bank and Balvinder Randhawa
(Interested Parties)
COSTS ENDORSEMENT
Durno J.
DATE: August 25, 2014