Beard Winter L.L.P. v. Shekhdar, 2016 ONSC 1852
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BEARD WINTER LLP, RESPONDENT
AND: KERSASP SHEKHDAR, APPLICANT
BEFORE: MARROCCO A.C.J.S.C.
HEARD: IN WRITING
ENDORSEMENT
1This matter was brought to my attention because the applicant, who is in Pakistan, wanted permission to appear either by telephone or Skype at the hearing of his motion, and because I am, at the Chief Justice’s direction, responsible for oversight of the Divisional Court.
2Pursuant to Rule 2.1.01, I asked the applicant for submissions on the question of jurisdiction which the applicant efficiently provided. I directed the respondent to respond only if directed to do so by the Court.
3Mr. Shekhdar brings two motions under s. 21(5) of the CJA to review and set aside the decision and costs order of a Superior Court judge made on appeal from a Master’s order.
4The history of legal proceedings between Mr. Shekhdar and Beard Winter is set out in the appeal judge’s August 17, 2015 decision at paras. 3-22. In brief, the appeal judge heard appeals by Beard Winter and Mr. Shekhdar from the order of Master Short dated December 31, 2014.
5The Master ordered that costs payable by Mr. Shekhdar to Beard Winter were to be determined by the judge hearing the outstanding action between them, and granted Mr. Shekhdar nominal costs in the amount of $1000. Beard Winter argued that the Master did not have jurisdiction to defer the costs balance owing and that there was no basis or jurisdiction to grant Mr. Shekhdar $1000 in costs. Mr. Shekhdar argued that he should have been awarded more than $1000.
6By decision dated August 17, 2015, the appeal judge granted part of Beard Winter’s appeal, holding that the costs payable by Mr. Shekhdar are outstanding, and dismissed both Mr. Shekhdar and Beard Winter’s appeals concerning the $1000 costs order, finding the amount reasonable in the circumstances.
7Beard Winter was granted $8,500 in appeal proceeding costs, to be set-off against the $1000 costs order. The parties failed to settle the order, so the appeal judge finalized the order in the form submitted by Beard Winter by endorsement dated November 23, 2015.
8Mr. Shekhdar seeks to bring before the Divisional Court, according to his Notices of Motion, a “review motion” under section 21(5) of the Courts of Justice Act to “set aside or vary” the November 23, 2015 order and the costs award arising out of the August 17, 2015 order.
9The applicant described what he is seeking in this proceeding in his submission dated February 12, 2016.
10At paragraph 7 the applicant indicated that he is seeking “a review and a set aside” of the costs order in the decision of August 17, 2015.
11The applicant submits in that paragraph that a costs order arising from submissions subsequent to an appeal or motion is not an appellate order or a final order but rather an interlocutory order or motion order and therefore cannot be taken to the Court of Appeal.
12At paragraph 8 of those same submissions the applicant indicates that he is also seeking “a review and a set aside” of the appeal judge’s orders in her November 23, 2015 endorsement. This endorsement contains the appeal judge’s reasons for finalizing the order, resulting from Her Honour’s August 17, 2015 decision, in the form submitted by the respondent rather than the form suggested by the applicant.
13Section 133 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides as follows:
- No appeal lies without leave of the court to which the appeal is to be taken
(a) from an order made with the consent of the parties; or
(b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs.
14Where the party has an appeal as of right and only seeks to add a costs appeal, leave to appeal is to be sought from the panel hearing the appeal as of right (Rule 61.03(7)).
15The applicant says that he is seeking “a review and a set aside” of the costs order of August 17, 2015. Section 133 of the Courts of Justice Act cannot be avoided simply by refusing use the word “appeal”. Reconsideration of the order of the appeal judge by a panel of the Divisional Court amounts to an appeal of that portion of the order. The Divisional Court has no jurisdiction to hear an appeal from the appeal judge’s costs order.
16Section 21(5) of the Courts of Justice Act provides as follows:
21(5). A panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion.
17The decision of the appeal judge finalizing the text of the order reflecting her decision of August 17, 2015 cannot be reconsidered by a panel of the Divisional Court under s. 21(5). It is clear from paragraph 6 of the applicant’s materials that the applicant understands that the Her Honour’s order dismissing the applicant’s appeal of the final order of the Master was an appellate order and that an appeal from such an order must be taken to the Court of Appeal.
18This proceeding is vexatious because it has no reasonable ground. It cannot succeed. The applicant’s motion cannot succeed because the Divisional Court does not have jurisdiction to grant the remedy which the applicant is seeking. The Divisional Court hearing would be a waste of time.
19Accordingly, this matter is quashed.
20There will be no order concerning costs.
MARROCCO A.C.J.S.C.
Date: 20160315