COURT FILE NO.: 08-CV-347902 PD3
DATE: 20151120
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KERSASP SHEKHDAR
Plaintiff
– and –
BEARD WINTER LLP and
ROBERT C. HARASON
Defendants
In person, by telephone conference
Gavin Tighe and Rob Winterstein, for the Defendants
HEARD: November 18, 2015
REVISED ENDORSEMENT
DIAMOND J.:
Overview
[1] This proceeding has a lengthy procedural history. The plaintiff commenced this action over seven years ago, and to my understanding, he has yet to set this matter down for trial. It appears that I am the latest in a rather long line of judges to touch this file.
[2] On September 17, 2015, Master Graham released an endorsement which stayed this proceeding pending the plaintiff paying various outstanding costs orders in both this proceeding and a companion proceeding known as Beard Winter LLP v. Shekhdar (“the BW action”, Court File No. 07-CV-344269). Master Graham further ordered:
a) those various costs orders were to be paid by certain deadlines, the last date being December 18, 2015, and
b) in the event the plaintiff did not remit payment of the g costs orders by the deadlines, the defendants were at liberty to move, on notice, to dismiss the action.
[3] The plaintiff did not comply with Master Graham’s order, and as such this proceeding continues to be stayed. The plaintiff appealed Master Graham’s decision, and the hearing of that appeal proceeded before me on November 18, 2015.
[4] Of note, the plaintiff also served and filed a Motion Record seeking an order staying, or in the alternative setting aside or varying, Master Graham’s order. At the outset of the hearing, I advised the parties that, in my view, there was no real reason to proceed with the plaintiff’s motion (which he admittedly submitted was brought on a “just in case” basis in the event his appeal was dismissed.) as the plaintiff’s motion sought an order staying an order which stayed this action.
[5] While there may have been some merit to a request for an interim stay of Master Graham’s decision pending the appeal, as both the motion and the appeal were made returnable on the same date, the motion appeared to be superfluous and I thus requested that the parties focus their submissions upon the appeal.
Summary of Relevant Facts
[6] For the disposition of this appeal, I will proceed to highlight certain key facts in the chronology of events which have taken place over the last few years.
[7] The BW action, commenced in 2007, sought payment of fees and disbursements claimed to be owing by the plaintiff to BW. Master Short was assigned to case manage both the BW action and this action.
[8] By the fall of 2010, four separate costs orders were issued against the plaintiff in this action.
[9] On April 2, 2014, Master Short released an endorsement in which he purported to vary the payment terms of three of the outstanding costs orders, all made by judges of the Ontario Superior Court of Justice (the other outstanding costs order was made by a judge in the Court of Appeal for Ontario). Specifically, Master Short extended the deadline by which the plaintiff was to remit payment of those costs orders until “the final determination” of the BW action.
[10] While the deadline by which the plaintiff was to pay those costs was extended, Master Short did not vary or otherwise impact the plaintiff’s obligation to pay them, as that obligation existed as of the date each order was made.
[11] Rather than proceed to trial of its action, BW brought a motion before Master Short seeking leave to discontinue the BW action on a without costs basis. Master Short granted that motion, but once again varied the terms of payment of the three outstanding costs orders. In an endorsement released on December 31, 2014, Master Short ordered that payment of those three costs orders was now deferred until “the ultimate determination of liability” in this action.
[12] BW appealed the above described portion of the December 31, 2014 order of Master Short to the Ontario Divisional Court. That appeal was heard on June 29, 2015, with a decision taken under reserve.
[13] Prior to hearing of BW’s appeal, the plaintiff brought a motion before Master Graham seeking an order extending the time by which he was to set this action down for trial. While BW did not oppose the request for the extension, it took the position that such an extension ought to be granted upon terms, and in particular terms which required the plaintiff to pay some or all of the outstanding costs awards.
[14] The plaintiff’s motion was heard on March 9 and June 2, 2015 before Master Graham. At that time, given the terms of Master Short’s orders, the only “outstanding” costs order was the order made by a judge of the Court of Appeal for Ontario (i.e. payment of the other three costs orders had been deferred until the disposition of this action).
[15] On June 3, 2015, Master Graham released an endorsement granting the plaintiff an extension of time to set this action down for trial, but upon the following terms:
a) the plaintiff was to pay the outstanding costs order of the Court of Appeal for Ontario (“the $3,000.00 order”) on or before September 4, 2015.
b) the plaintiff could not initiate any motion until the said outstanding costs order was paid; and
c) in the event the plaintiff did not pay the outstanding costs order by September 4, 2015, this action shall be deemed to be stayed.
[16] The plaintiff did not appeal Master Graham’s June 3, 2015 decision. As well, the plaintiff did not remit payment of the $3,000.00 order. Instead, the plaintiff brought a motion before Master Graham seeking to vary/amend Master Graham’s June 3, 2015 order pursuant to Rule 59.06(1) of the Rules of Civil Procedure. The plaintiff took the position that the order contained “an accidental omission” or “particulars upon which Master Graham did not adjudicate”.
[17] The plaintiff’s motion to vary/amend Master Graham’s order was scheduled to be heard on September 16, 2015. Prior to that date, the Divisional Court released its decision allowing the appeal from Master Short’s orders. In Reasons for Decision released on August 17, 2015, Justice Harvison Young (writing for the panel) found that the portions of Master Short’s orders which sought to vary the payment terms of the three outstanding costs orders were all significant variations or amendments of orders made by judges, and those portions of Master Short’s orders were thus made without jurisdiction.
[18] The Divisional Court allowed BW’s appeal, and found as a result that all four unpaid costs orders were still owing. The Divisional Court also awarded costs of the appeal payable in the amount of $8,500.00 payable by the plaintiff to BW.
[19] The plaintiff’s motion to vary/amend Master Graham’s June 3, 2015 order then proceeded on September 16, 2015. In an endorsement released on September 17, 2015, Master Graham dismissed the plaintiff’s motion and found that his June 3, 2015 order contained no accidental slip or omission. He further found there was no “particular” upon which he did not adjudicate which required an amendment to the order.
[20] However, as Master Graham was also now aware of the Divisional Court allowing the appeal from Master Short’s orders, he varied his June 3, 2015 order and held that this action was stayed pending payment by the plaintiff of all four outstanding costs orders. Master Graham further held that in the event all costs orders (including the $8,500.00 costs order awarded by the Divisional Court) were not paid by October 16, 2015, BW would be at liberty to move, on notice, for an order dismissing this action.
[21] The plaintiff now appeals Master Graham’s September 17, 2015 order.
Decision
[22] As held by the Divisional Court in Zeitoun v. Economical Insurance Group (2008) 2008 CanLII 20996 (ON SCDC), 91 O.R. (3d) 131 (Div. Ct.), the standard of review of a Master’s decision (both final and interlocutory) is whether the Master exercised his/her discretion upon the wrong principles, or misapprehended the evidence to such an extent that there is a palpable and overriding error.
[23] During oral argument, the plaintiff advanced slightly different grounds in support of his appeal than those set out in his factum. I wish to first address one ground which, during argument, raised a significant concern. In alleging that Master Graham displayed a disposition and bias in favour of BW (an allegation which I reject), the plaintiff offered to allow me to listen to recordings of the attendances before Master Graham which resulted in his June 3 and September 17, 2015 orders.
[24] In response to my questioning as to how the plaintiff was in possession of such recordings, he advised that he had recorded those and other proceedings himself with his own personal recorder.
[25] Section 136 of the Courts of Justice Act, R.S.O. 1990, c. C.43 prohibits any person from, inter alia, making any audio or video recording of a court hearing. It is also prohibited to broadcast or reproduce any such recording, and the plaintiff admitted to posting online links to the recordings. Section 136(4) renders such conduct to be an offence, and on conviction a person would be liable to a fine of not more than $25,000.00 and/or imprisonment for a term of not more than six months.
[26] The only exception to this prohibition is where a judge provides his/her authorization to proceed with the recording for the purpose of the presentation of evidence, educational or instructional purposes, or in connection with any naturalization or ceremonial proceeding.
[27] No such authorization was sought or obtained from Master Graham. The plaintiff candidly admitted that he was recording the appeal hearing itself before me, despite not having requested my authorization to do so. I immediately instructed the plaintiff to cease recording the appeal hearing, and he indicated that he had done so.
[28] The provisions of section 136 of the Courts of Justice Act are clear, and there are significant consequences to a breach of the provisions of that section. I trust that the plaintiff will now ensure that he takes all necessary steps to cease any future recordings, destroy any existing recording and remove any references or links to those recordings off the internet.
[29] The crux of the plaintiff’s remaining arguments focused upon his contention that Master Graham was without jurisdiction to make the order he did, as BW only appealed Master Short’s December 31, 2014 order (and not his previous April 2, 2014 order). The plaintiff submitted that BW’s appeal was only allowed to vary the salient provisions of Master Short’s December 31, 2014 order, thereby leaving the provisions of Master Short’s June 3, 2014 order to stand.
[30] I do not agree. The only reason BW appealed the December 31, 2014 order was that Master Short varied the payment terms of the outstanding costs orders a second time by deferring payment from the disposition date of the BW action to the disposition date of this action. While the Divisional Court found that Master Short lacked jurisdiction to defer payment at all, in my view the contents of paragraphs 44 and 45 of Justice Harvison Young’s decision make it clear that both orders were front and center before the Divisional Court.
[31] The December 31, 2014 order explicitly references the April 2, 2014 order. BW was presumably content with the April 2, 2014 order as BW subsequently sought leave to discontinue the BW action without costs, hoping to “restart” the plaintiff’s deferred obligation to pay the outstanding costs orders.
[32] If the plaintiff disagreed with the Divisional Court’s findings, as Master Graham himself stated, the plaintiff’s recourse was to appeal that decision and not launch another collateral attack against it via this appeal.
[33] It was well within Master Graham’s jurisdiction to vary his own prior order, even though BW did not technically serve a notice of motion seeking that relief at the return of the plaintiff’s motion to vary/set aside on September 16, 2015. Section 106 of the Courts of Justice Act provides that a court, on its own initiative or on motion by any person, may stay any proceeding in the court on such terms as are considered just.
[34] Ironically, by invoking and relying upon Rule 59.06(1), the plaintiff himself opened the door to Master Graham’s jurisdiction to review his own order. As the Divisional Court’s decision was not available to Master Graham when he released his June 3, 2015 order, the factual landscape had obviously changed between the dates of the two orders and Master Graham was simply updating the terms of his June 3, 2015 order to reflect the additional costs orders which were now (and once again) outstanding.
[35] Master Graham did nothing “new” in his September 17, 2015 order other than to increase the amounts due to be paid by the plaintiff as a term of dismissing with the stay and proceeding with this action.
[36] I see no error, let alone any palpable or overriding error, made by Master Graham in his September 17, 2015 order. Master Graham exercised his discretion upon correct principles.
[37] As such, the appeal is dismissed. For the same reasons set out herein, the plaintiff’s motion is also dismissed.
Costs
[38] At the conclusion of the hearing, the parties made costs submissions as to entitlement and quantum. As the defendants were the successful parties, I see no reason why costs should not follow the event.
[39] I have reviewed the defendants’ Bills of Costs for both the motion and the appeal. In my view, there is some overlap and reproduction of time. Indeed, the contents of the defendants’ factums filed in response to both the motion and the appeal are identical in several key sections.
[40] The court is required to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of a successful party with a goal of fostering access to justice. The plaintiff is obviously well familiar with the cost consequences of unsuccessful steps in this litigation, as his failure to comply with the outstanding costs orders has led to this action being stayed.
[41] In the circumstances of this case, I order the plaintiff to pay the defendants’ costs of the motion and the appeal fixed on a partial indemnity basis in the total sum of $7,000.00 and payable forthwith.
Diamond J.
Released: November 20, 2015
COURT FILE NO.: 08-CV-347902 PD3
DATE: 20151120
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KERSASP SHEKHDAR
Plaintiff
– and –
BEARD WINTER LLP and
ROBERT C. HARASON
Defendants
REVISED ENDORSEMENT
Diamond J.
Released: November 20, 2015