Exponents Canada Inc. v. Sharma, 2015 ONSC 1395
COURT FILE NO.: CV-14-2334-00
DATE: 2015-03-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
EXPONENTS CANADA INC. and NAVDEEP SARAO
Navedeep Sarao, appearing self-represented
Exponents Canada Inc. not appearing
Plaintiffs
- and -
SUMIT SHARMA, CRITIVIA INC. and EXPONENTS INC.
Brandon Jaffe, for the defendants
Defendants
Price J.
Costs Endorsement
[1] This court determined that Tzimas J’s order should not be lifted from the defendant Sumit Sharma’s Caledon property and that, accordingly, no subsequent mortgage could be registered on title from the time the order was registered on title.
[2] The awarding of costs is in the discretion of the court. The Courts of Justice Act provides, in this regard:
131(1) Subject to the provisions of an Act or rules of court, the costs of an incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.[^1]
[3] In exercising its discretion in the determination of costs pursuant to section 131(1), a court must arrive at a costs award that is a fair and reasonable amount to be paid by an unsuccessful party, and that takes into account the reasonable expectations of the parties, and especially the unsuccessful party, concerning the quantum of a costs award.[^2]
[4] Rule 57.01(1) of the Rules of Civil Procedure contains a non-exhaustive checklist of factors that guide the Court in its reasoning when awarding costs in the exercise of its discretion under section 131 of the Courts of Justice Act. I have considered Rule 57 of the Rules of Civil Procedure[^3] and the principles set out by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario[^4] and Davies v. Clarington (Municipality).[^5]
[5] The overall objective of fixing costs is to set an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.
[6] In this case, the proceedings were complex and involved the retroactive lifting a stay of proceedings following Mr. Sharma’s consumer proposal under the Bankruptcy and Insolvency Act,[^6] and the registration of a Court ordered injunction on property in the face of a stay of proceedings arising from a creditor’s proposal. The injunction was ordered before the stay but registered on title after the stay came into effect. The motion also dealt with the retroactive lifting of a stay for the purposes of protecting constructive trust interests in the proceeds of an alleged misappropriation of corporate assets.
[7] To make matters more complex, counsel for the plaintiff did not attend at court to argue the motion, as he attended instead at examinations for discovery. I stated the following in my reasons following the hearing of the motion:
At the hearing of their motion on November 20, 2014, Mr. Sarao and ECI appeared without their lawyer, Mr. Mangat, who had prepared the motion on their behalf. Mr. Sarao reported that Mr. Mangat was at an examination for discovery in Toronto. It is troubling that Mr. Mangat regarded an examination for discovery as justification for his absence at court for the hearing of a motion that he had prepared. His conduct undoubtedly added to the time required for the hearing.[^7]
[8] At the hearing of the motion, counsel for the defendants, Mr. Jaffe, provided the court with assistance in addressing the various issues which the plaintiff had put before it. The self-represented plaintiff was unhelpful, and sought to support himself upon the submissions made by opposing counsel, and by the questions which the court put to opposing counsel.
[9] Normally, costs are awarded to the successful litigant. However, Rule 57.01(1) of the Rules of Civil Procedure provides, in this regard:
57.01(1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
[10] Having regard to the lack of assistance given to the court by the plaintiff, and the conduct of its counsel that added to the complexity of the motion and tended the lengthen unnecessarily the duration of the hearing, and further having regard to the assistance given by counsel for the unsuccessful litigant, it is fair and reasonable to make no order as to costs.
[11] For these reasons, there shall be no order for costs.
Justice D.G. Price
DATE: March 3, 2014
CITATION: Exponents Canada Inc. v. Sharma, 2015 ONSC 1395
COURT FILE NO.: CV-14-2334-00
DATE: 2015-03-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
EXPONENTS CANADA INC. and NAVDEEP SARAO
Plaintiffs
- and -
SUMIT SHARMA, CRITIVIA INC. and EXPONENTS INC.
Defendants
COSTS ENDORSEMENT
Price J.
Released: March 3, 2015
[^1]: Courts of Justice Act, R.S.O. 1990, Chap. C.43, s. 131(1)
[^2]: Zesta Engineering Ltd. v. Cloutier, 2002 ONCA 25577, 2002 ONCA 25577, [2002] O.J. No. 4495 (C.A.), at para. 4
Boucher v. Public Accountants Council for the Province of Ontario, 2004 ONCA 14579, 2004 ONCA 14579, [2004] O.J. No. 2634, at para. 38.
[^3]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194
[^4]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 ONCA 14579, 71 O.R. (3rd) 291 (C.A.)
[^5]: Davies v. Clarington (Municipality) (2009), 2009 ONCA 722 , 100 O.R. (3d) 66 (C.A.)
[^6]: Bankruptcy and Insolvency Act, RSC 1985, c B-3
[^7]: Exponents Canada Inc. v. Sharma, 2014 ONSC 7097, para. 36