Superior Court of Justice - Ontario

Court File No.: 05-157/13
Date: 20151106

RE: BEARD WINTER LLP, Plaintiff

AND:

KERSASP SHEKHDAR, Defendant

BEFORE: Mr. Justice T. McEwen

COUNSEL:
Gavin J. Tighe and Rob Winterstein, for the Plaintiff
Kersasp Shekhdar, in person via teleconference

READ: October 21, 2015

ENDORSEMENT

[1] The defendant Kersasp Shekhdar (“Shekhdar”) brings this motion seeking costs of this action as a result of the action being administratively dismissed by the Local Registrar by way of the Order Dismissing Action for Delay – Form 48D, issued July 28, 2015. As set out in the order the action was dismissed for delay, with costs.

[2] The problem with Shekdhar’s position is the fact that his entitlement to costs of the action had been previously determined by Master Short who released his decision on December 31, 2014. In that decision Master Short held that this action, that was commenced by the plaintiff Beard Winter LLP (“Beard Winter”), could be discontinued without costs (with the exception of a payment of $1,000.00 that Master Short required Beard Winter to pay to Shekhdar concerning a number of out-of-pocket expenses that Shekhdar had incurred).

[3] Shekhdar, thereafter, appealed Master Short’s decision to the Divisional Court. Justice Harvison Young heard Shekdhar’s appeal, as well as an appeal from Beard Winter on June 29, 2015. While that decision was under reserve the aforementioned administrative order dismissing the action with costs was issued by the Local Registrar. Shekhdar thereafter delivered the Notice of Motion for this motion seeking costs of the action. The solicitors for Beard Winter contacted Shekhdar advising that this motion should not be brought since the matter had already been determined by Master Short and the parties were waiting on the appeal decision from Justice Harvison Young.

[4] On August 17, 2015, Justice Harvison Young released her decision with respect to the parties’ respective appeals of the order of Master Short. Justice Harvison Young specifically dealt with the issue of whether Shekhdar was entitled, or not, to his costs of this action. She outlined her reasons, in part, as follows:

Issue 3. Did the Master err in failing to award costs to Mr. Shekhdar on the basis of a lack of evidence that he had foregone the opportunity for income in order to prepare for the litigation?

[51] This issue forms a central part of Mr. Shekhdar's appeal but I address it at this point because it also relates to the basis for the costs award on the discontinuance motion.

[52] As I have already indicated, I do not find that the Master erred in treating Mr. Shekhdar's submissions as a "motion" within the meaning of Rule 23.05 or in awarding him $1000 for, in effect, disbursements. However, I do not accept Mr. Shekhdar's submissions that the Master erred in failing to award him costs because he had failed to provide proof of opportunity costs given up by Mr. Shekhdar by foregoing remunerative activity. The Master applied the legal principles as set out in Fang v. Chan (1999), 46 O.R. (3d) 330, 1999 2052 (ONCA) and Mustang Investigations v. Ironside, 2010 ONSC 3444, 103 O.R. (3d) 633 (Div.Ct.). These cases stand for the principle that a self-represented litigant is not entitled to compensatory costs in the absence of evidence showing that he or she has foregone the opportunity to earn income in the course of the preparation involved for the litigation.

[53] Mr. Shekhdar argued that these cases are unfair and obsolete and "must be put out to pasture". To the extent that these cases state the current law, and in my view there is no doubt that they do, refusing to follow them would be a clear error of law on my part, He also argued forcefully, however, that there is ample material that he has filed in the course of the litigation that provides evidence that he has foregone the opportunity to earn income in order to conduct this litigation and that he has thus met this test.

[54] The problem with Mr. Shekhdar's argument in this respect is that he is referring not to material filed with respect to the motion before Master Short or this appeal but to materials which he claims have been filed over the last number of years. Those materials are not properly before the court on this appeal. The Master, and this court on appeal, may properly consider only the evidence that was properly before the court on the hearing of the motion. That does not include evidence that may have been filed at any other time in the course of the lengthy litigation which has included voluminous materials, unless it part of the record before the court on the particular motion.

[55] Mr. Shekhdar may be in a difficult position as far as this issue is concerned because of the position he has taken in relation to his action against Beard Winter and his employment prospects. Nevertheless, a court on a motion such as that before the Master is not required to and could not possibly make such determinations on the basis of many boxes of documents filed at various times and for various purposes over a number of years which have not been specifically included in the particular record before it.

[56] In closing on this issue, I note that Mr. Shekhdar also claims that the Master "knowingly falsified his reasons for decision" in finding that he failed to provide proof of any opportunity costs given up. This is an inappropriate attack on the character and integrity of a member of the judiciary and I will not address it except to say that Mr. Shekhdar's oral submissions were civil and respectful and, as far as this issue is concerned, concentrated on his argument that the Master should have drawn on all material presented to him over the past number of years. Accordingly, I attribute that remark to a misunderstanding of the scope of an evidentiary record which is properly before a judge on a particular proceeding, even a judge who has heard other matters relating to the same action with the same parties.

[57] In short, I find no error in principle or palpable or overriding error on the part pf the Master's award of the amount of $1,000 representing "probable" out of pocket costs to Mr. Shekhdar. [emphasis added]

[5] The decision of Justice Harvison Young was not appealed.

[6] This left the parties with the administrative order and the order of Justice Harvison Young which has led to this motion. I should point out that Beard Winter has a motion pending returnable November 13, 2015, to set aside the administrative order.

[7] In response to this motion, Beard Winter submits that by the time the administrative order was issued Shekhdar’s entitlement to costs of the action had already been determined by Master Short. Thus, the doctrines of res judicata and issue estoppel apply.

[8] Shekhdar, on the other hand, submits that the order of Harvison Young did not truly deal with the issue of costs since it did not specifically deal with income that he has lost as a result of defending this action. He points, in part, to paragraphs 53 and 54 of her decision wherein materials were not filed before her or Master Short. He believes materials can still be filed in this regard.

[9] I disagree with Shekdhar and accept the submissions of Beard Winter. The time to file the relevant materials concerning loss of employment income would have been when the issue of costs of the action was a live one before Master Short and thereafter before Justice Harvison Young. It is simply too late to do it now since Master Short’s order dealt with costs and the order was upheld by Justice Harvison Young. Master Short's decision was made prior to the administration order being issued.

[10] The administrative order was obviously issued without knowledge of the fact that Master Short had determined the issue of costs and that the matter was under appeal. Further, there is no doubt in my mind that the administrative order would not have been issued had a judge of this Court been aware of the situation. Had this been the case, in the usual way, an order would have been made staying any such administrative order, pursuant to Rule 48.14(1) of the Rules of Civil Procedure, pending the outcome of the decision of Justice Harvison Young.

[11] Also, in my view, there is no need for Beard Winter to proceed with its November 13, 2015, motion to set aside the Local Registrar’s order of July 28, 2015. When one considers the direction that has been given to this Court by the Supreme Court of Canada in Hryniak v. Mauldin, [2014] 1 SCR 87, 2014 SCC 7, it would be nonsensical to force Beard Winter to proceed with the motion which would only increase costs to both parties and force a step that, in my view, is completely unnecessary.

[12] The motion is therefore dismissed and Beard Winter shall have its costs. Beard Winter seeks costs on a substantial indemnity basis. It is my view that partial indemnity is warranted given the confusion surrounding the issuance of the administrative order. To be fair to Shekhdar, he is a self-represented litigant, and was faced with what could be described as a confusing set of judicial decisions.

[13] The bill of costs submitted by the plaintiffs is a modest one and I award the costs sought of $4,094.26.

Mr. Justice T. McEwen

Date: November 6, 2015