SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LINDA MOHAMMED – and – RICARDO MOHAMMED
BEFORE: André J.
COUNSEL: no one appearing for the Applicant
Ricardo Mohammed, on his own behalf
S. Jagpal, for the non-party, Kulwinder Singh
Karen Cunningham, for herself, a non-party lawyer
HEARD: February 22, 2016
E N D O R S E M E N T
1The non-party, Mr. Kulwinder Singh (“Mr. Singh”) brings a motion to set aside the order of Justice Gibson, dated August 28, 2015 and for costs against Mr. Ricardo Mohammed (“Mr. Mohammed”) and Ms. Karen Cunningham, (“Ms. Cunningham”) his former counsel. Ms. Cunningham brings a motion for an order dismissing Mr. Singh’s motion against her for costs.
BACKGROUND FACTS
2This litigation arose following the sale of the litigants’ matrimonial home.
3On September 8, 2014, I ordered Mr. Mohammed to vacate the matrimonial home and Ms. Linda Mohammed (“Ms. Mohammed”) to list it for sale.
4On February 24, 2015, Justice Emery ordered that the net proceeds of the sale of the matrimonial home be held in trust or paid into court.
5Ms. Mohammed sold the matrimonial home to the non-party, Mr. Singh on April 1, 2015 for $570,000. Mr. Singh then resold the home on July 15, 2015 for $747,000 with a projected closing date of September 4, 2015. Mr. Harder Mann (“Mr. Mann”) was the realtor who assisted Mr. Singh in the resale of the home.
6In August, Mr. Mohammed brought a motion to have Ms. Mohammed held in contempt because she fraudulently conveyed the matrimonial home for substantially less than its market value and failed to pay the net proceeds into court as ordered. This motion was returnable on August 28, 2015.
7Mr. Mohammed retained Ms. Cunningham as his counsel on the motion. Ms. Cunningham has deposed that prior to serving the motion she received information that the purchaser of the Mohammeds’ matrimonial home was a real estate broker called Mr. Kulwinder Singh.
8She conducted a search of the Real Estate Council of Ontario’s directory and found a Kulwinder Singh employed by Century 21 Green Realty Inc. in Mississauga. There were over 700 Kulwinder Singhs in the telephone directory. Ms. Cunningham then sent her motion and supporting materials to the realtor named Kulwinder Singh. These materials were returned to her after the date on which Mr. Mohammed’s motion was scheduled to be heard.
9Ms. Cunningham also mailed a copy of her motion and supporting affidavits to Kulwinder Singh at the address of the matrimonial home. She received no reply.
10Ms. Cunningham’s secretary, Lorna Bair, has deposed that Mr. Mann called Ms. Cunningham on August 20, 2015 and advised her that he had received her Notice of Motion and supporting affidavit. He advised her that Kulwinder Singh was not a real estate agent, he was an automotive mechanic. He also advised Ms. Cunningham that both Mr. Mann and Mr. Singh would be in Jamaica from August 23 to August 30 for a wedding. Mr. Mann undertook to send Ms. Cunningham a copy of his travel ticket but never did.
11Mr. Mann visited Ms. Cunningham’s office and advised her that he and Mr. Singh would be in Cuba. However, Mr. Mann specifically advised her that he would be talking to his lawyers, thereby leaving Ms. Cunningham with the impression that Mr. Mann and indeed Mr. Singh would be represented at the hearing scheduled for August 28, 2015. Ms. Cunningham deposed that she spoke to Mr. Mann a couple of days before going on vacation. Ms. Cunningham arranged to have another lawyer, Ms. Howden, appear on her behalf on August 28, 2015.
12On August 28, 2015, Ms. Mohammed represented herself while Ms. Howden appeared on behalf of Mr. Mohammed. No one appeared on behalf of Mr. Mann or Mr. Singh. Ms. Mohammed advised Justice Gibson that Mr. Singh was in Cuba. Justice Gibson expressed concerns that the file appeared to be a “mess”. He expressed a desire to adjourn Mr. Mohammed’s motion. Ms. Howden and Ms. Mohammed indicated that they would consent to an adjournment. Justice Gibson nevertheless held the matter down and advised Ms. Howden and Ms. Mohammed that he was satisfied that he could render a decision on the motion.
13Justice Gibson then proceeded to dismiss the contempt motion but ordered that the proceeds of the resale of the Mohammeds’ matrimonial home be held in trust or paid into court. He ordered Mr. Singh and his real estate broker to attend for questioning.
14Mr. Singh brings this motion, initially returned on September 15, 2015, to strike the parts of Justice Gibson’s order relating to him, or alternatively, to pay into Court lesser funds than Justice Gibson originally ordered. He seeks costs payable by Mr. Mohammed and by Ms. Cunningham personally for bringing the August 28, 2015, motion despite knowing that Mr. Singh would be out of the country. Justice Edwards adjourned the motion to November 10, 2015, but stayed the part of Justice Gibson’s order that related to Mr. Singh. He ordered Mr. Singh not to dissipate his assets.
15On November 10, 2015, Justice Edwards adjourned Mr. Singh’s motion regarding costs to February 22, 2016.
ANALYSIS
16This motion and counter motion raise the following issues:
Should Justice Gibson’s August 28, 2015, order be set aside?
Should Mr. Singh’s motion for costs against Ms. Cunningham and Mr. Mohammed be dismissed?
If the second issue is resolved in favour of Ms. Cunningham, should costs be awarded to Mr. Singh?
ISSUE No. 1 – Should Justice Gibson’s August 28, 2015 order be set aside?
17Mr. Singh, who did not file a factum as required by the Rules, maintains that it should. He deposes that he was a bona fide purchaser for value of the Mohammed’s matrimonial home. He deposes that he received two estimates for the value of the property which valued the property at $625,000 to $650,000. He alleges that Mr. Mohammed caused $55,000 in damage to the property before he moved out of the home. He maintains that the selling price was further reduced by $30,000 because a real estate agent was not used in the purchase. Mr. Singh further deposes that he spent $70,000 renovating the property.
18Neither Ms. Mohammed nor Ms. Cunningham takes a position on this issue. On September 15, 2015, Mr. Mohammed sought to adjourn Mr. Singh’s motion because of late service of the motion materials and to retain counsel. He still has not retained counsel on the ground of impecuniosity.
19There are still unanswered questions in his motion. These questions include:
What was the relationship, if any, between Mr. Singh and Ms. Mohammed when he purchased the home?
Why was the resale price of the Mohammeds’ home almost $100,000 more than the higher of the two estimates he received?
Has there been an independent assessment of the alleged damage done to the home by Mr. Mohammed and the value of the renovations which Mr. Singh allegedly did to the home?
20Answers to these questions are required for this court to conclude that Mr. Singh was indeed a bona fide purchaser for value of the Mohammeds’ home. That said, this motion was adjourned from November 10, 2015 to February 22, 2016, to enable Mr. Mohammed to retain counsel. The matter was marked peremptory to him. Mr. Mohammed has still not retained counsel despite the fact that he told the court on November 20, 2015, that he had gotten legal aid.
21Given Mr. Mohammed’s failure to file responding materials on this motion, or to retain counsel, it is my view that Mr. Singh’s motion to set aside Justice Gibson’s order, as it relates to Mr. Singh, should be set aside. I so order.
ISSUE NO. 2 – Should Mr. Singh’s motion for costs against Ms. Cunningham and Mr. Mohammed be dismissed?
22Mr. Singh’s counsel takes the position that costs in the amount of $4,000 each should be awarded against Mr. Mohammed and Ms. Cunningham. His counsel contends that Ms. Cunningham’s decision to proceed with the motion set for August 28, 2015, knowing full well that Mr. Mann and Mr. Singh were in Cuba, and her failure to advise the Court was questionable at best and may well constitute sharp practice. His counsel further submits that had full and frank disclosure been made to Justice Gibson, he would not have made the order that he did.
23I am not persuaded that Ms. Cunningham acted improperly in bringing the motion on August 28, 2015. She may have erroneously served the wrong “Kulwinder Singh” with her motion materials. However, that appears to have been an innocent error. She admittedly received information on August 20, 2015, that the Kulwinder Singh who purchased the Mohammeds’matrimonial home was an automotive mechanic rather than a real estate agent. She therefore should have realized at that juncture that she had served the wrong Kulwinder Singh.
24However, in light of Mr. Mann’s statement to her that the “real” Kulwinder Singh was a mechanic and that he and Mr. Mann, who had been served with the motion materials, were travelling to Cuba together, it was reasonable for her to conclude that Mr. Singh was aware of her client’s motion and its return date.
25Mr. Mann showed up at Ms. Cunningham’s office the next day and indicated that he had many lawyers. He also shouted to Ms. Cunningham “see you in court” before leaving her office.
26The transcript of the court proceedings on August 28, 2015, confirms that Ms. Cunningham advised Ms. Howden about her interaction with Mr. Mann on August 20, 2015. Ms. Howden erroneously advised the court that Mr. Singh, rather than Mr. Mann, attended Ms. Cunningham’s office and suggested that he would have a lawyer. She also erred in advising the court that Mr. Singh had been served on August 20, 2015. That, however, appears to have been an innocent mistake on Ms. Howden’s part, rather than a deliberate attempt to mislead the court.
27Second, when the Court suggested adjourning the matter, Ms. Howden stated to the Court that: “I don’t think that my client would be adverse to an adjournment”: see Transcript of the evidence dated August 28, 2015, at page 24. Clearly, had she intended to take advantage of Mr. Singh’s absence, she would not have taken that position.
28Third, the Court was not left in the dark about the whereabouts of Mr. Singh on August 28, 2015. Ms. Mohammed advised the Court that Mr. Singh and Mr. Mann were out of the country until the following Sunday and that they had spoken to Ms. Cunningham’s office to advise Ms. Cunningham that they would not be back until then. Despite this disclosure and the fact that both Ms. Mohammed and Ms. Howden advised the Court that they would consent to an adjournment, Justice Gibson nevertheless decided to deal with the motion.
29Mr. Jagpal suggests that costs should be awarded against Mr. Mohammed because he filed a misleading affidavit which made no mention of the fact that he had been charged with damaging the matrimonial home.
30In my view, this omission does not justify an award of costs against Mr. Mohammed. The fact that the police charged Mr. Mohammed with mischief does not necessarily mean he is guilty. Second, his wife advised the Court that he had vandalized the matrimonial home and had caused “over $60,000 in damages”. She repeatedly advised the Court that Mr. Mohammed was facing “vandalization charges” that were before the Court. The Court was therefore aware of the fact that Ms. Mohammed was using this alleged damage to the matrimonial home to justify the sale of the home for $570,000.
31In my view, neither Mr. Mohammed nor Ms. Cunningham can be faulted for Justice Gibson’s decision to deal with Mr. Mohammed’s motion. Ms. Cunningham clearly believed that Mr. Mann, at the very least, would seek an adjournment of the motion and that is clearly borne out by the comments made to the court by Ms. Howden. Mr. Mann, based on what he stated to Ms. Cunningham, should have ensured that someone appeared on his behalf on August 28, 2015. Neither Ms. Cunningham nor Ms. Mohammed should bear responsibility for his failure to do so.
DISPOSITION
32Based on the above, Mr. Kulwinder Singh’s motion is dismissed.
COSTS
33Ms. Cunningham seeks costs of $16,751.29 on a full recovery basis against Mr. Singh and his counsel, Mr. Jagpal. In assessing what quantum of costs can be considered fair and reasonable in this matter, I consider the following factors.
34First, Ms. Cunningham was substantially successful and is entitled to her costs as a result.
35Second, one would have thought that Mr. Singh’s counsel would have carefully reviewed the transcript of the proceedings on August 28, 2015 before proceeding with his motion for costs against Mr. Mohammed and Ms. Cunningham, the more so because he alleged that Ms. Cunningham’s actions may have constituted sharp practice.
36That said, this matter was an uncomplicated matter. Contrary to what Ms. Cunningham notes in her Bill of Costs, it did not require extensive research or preparation. Ms. Cunningham’s Bill of Costs indicates that she spent approximately 30 hours reviewing the motion materials and the applicable caselaw and an additional five hours preparing a book of authorities. In my view, Mr. Singh’s motion did not warrant such an extensive period of review of the caselaw or motion materials.
37Mr. Singh made an offer to settle on February 19, 2016, by requiring Ms. Cunningham to pay him costs in the amount of $1,000 plus HST in exchange for both Mr. Singh and Ms. Cunningham discontinuing their motions.
38Ms. Cunningham made an offer to settle on October 15, 2015 to Mr. Singh that there would be no order as to costs against her and that if Mr. Singh accepted her offer, each party would bear his or her own costs. Mr. Singh did not accept the offer.
39In all the circumstances of this case, costs in the amount of $3,500 are fair and reasonable.
40Ms. Cunningham seeks costs against Mr. Singh and Mr. Jagpal personally.
41Rule 57.07 of the Rules of Civil Procedure states:
(1) Where a lawyer for a party has caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default, the court may make an order,
(a) disallowing costs between the lawyer and client or directing the lawyer to repay to the client money paid on account of costs;
(b) directing the lawyer to reimburse the client for any costs that the client has been ordered to pay to any other party; and
(c) requiring the lawyer personally to pay the costs of any party. O. Reg. 575/07, s. 26.
42In Marchand (Litigation Guardian of) v. Public Hospital Society of Chatham, [1998] O.J. No. 527 (S.C.), at para. 115, Granger J. noted that:
Although “bad faith” is not a requirement to invoking the cost sanctions of Rule 57.07 against a solicitor, such an order should only be made in rare circumstances and such orders should not discourage lawyers from pursuing unpopular or difficult cases. It is only when a lawyer pursues a goal which is clearly unattainable or is clearly derelict in his or her duties as an officer of the court that resort should be had to R. 57.07.
43While it may be tempting to invoke Rule 57.07, I am mindful of the Supreme Court of Canada’s admonition in Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 (S.C.C.), at p. 135, that:
[C]ourts must be extremely cautious in awarding costs personally against a lawyer, given the duties upon a lawyer to guard confidentiality of instructions and to bring forward with courage even unpopular causes. A lawyer should not be placed in a situation where his or her fear of an adverse order of costs may conflict with these fundamental duties of his or her calling.
44These observations do not give a lawyer a licence to cast aspersions on opposing counsel. However, it reminds the court that a lawyer may be required, on occasion, to advance a position on his client’s behalf which may raise questions about opposing counsel’s conduct.
ORDER
45Mr. Singh is ordered to pay costs fixed in the amount of $3,500 inclusive to Ms. Cunningham, within sixty (60) days of today’s date.
André J.
DATE: March 18, 2016
CITATION: Mohammed v. Mohammed, 2016 ONSC 1832
COURT FILE NO.: FS-12-74897-00
DATE: 20160318
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LINDA MOHAMMED – and – RICARDO MOHAMMED
BEFORE: André J.
COUNSEL: no one appearing for the Applicant
Ricardo Mohammed, on his own behalf
S. Jagpal, for the non-party, Kulwinder Singh
Karen Cunningham, for herself, a non-party lawyer
ENDORSEMENT
André J.
DATE: March 18, 2016