Court File and Parties

Court File No.: FS-13-388450 and CV-13-477962 Date: 2016-05-19 Superior Court of Justice - Ontario

Re: Alka Singh, Applicant And: Rajeev Singh Chandel (a.k.a. Rajeev Kumar Singh) and Shakuntala Singh, Respondents

Re: Rajeev Singh Chandel, Applicant And: Alka Singh, Respondent

Before: Kiteley J.

Counsel: Reesa Heft, for Alka Singh A. Rick Toor, for Rajeev Singh Chandel (a.k.a. Rajeev Kumar Singh)

Heard: in writing

Endorsement as to Costs

[1] In an endorsement dated December 24, 2015, I granted the motion brought on behalf of Mr. Singh for an order for payment out of the funds held in trust. At paragraph 24 of the endorsement, I directed Mr. Toor to make written submissions as to costs by January 11 provided that the submissions not exceed 3 pages plus costs outline plus offer to settle if any. And I directed Ms. Singh to do the same by January 25, 2016.

[2] Mr. Toor complied.

[3] Ms. Singh brought a motion for leave to appeal to the Divisional Court and accordingly she did not comply. She asked for an extension of time to file her submissions as to costs. In paragraph 33 of my endorsement dated March 18, 2016, I ordered that within 5 business days of receipt of the disposition of the motion for leave to appeal, whether leave was granted or not, counsel for Ms. Singh shall serve and file written submissions as to costs of the motion.

[4] The endorsement by Sachs J. dismissing the motion for leave is dated April 6, 2016.

[5] At the TMC held on January 8, 2016, I directed the resumption of the trial on May 16, 2016. On May 16, I pointed out that counsel for Ms. Singh had failed to comply with paragraph 33.

[6] On May 18, 2016 I received from Ms. Heft written submissions as to costs of the motion heard October 27, 2015 with no explanation for failing to deliver the submissions by April 13, 2016; no request for an extension of time to deliver the submissions; and consisting of 11 pages, not 3. The affidavit of service indicates that Ms. Singh served the costs submissions on May 16, 2016 by mail which means that Mr. Toor may not have received the submissions. No doubt Mr. Toor would object both to the late delivery and to the excessive content. I do not intend to give him an opportunity to make such submissions. I will deal with the issue of costs on the basis of the submissions received.

[7] In his submissions, Mr. Toor asked for fees for 17.1 hours at $250 per hour for a total of $4275 plus HST in the amount of $555.75 for a total of $4830.75. He takes the position that his client is entitled to costs because he was successful on the motion; that extra services were required because Ms. Singh filed a responding affidavit which totaled 315 pages notwithstanding my direction that the total pages should not exceed 50; and that his client should recover full indemnity costs.

[8] The position taken on behalf of Ms. Singh includes the following: Mr. Singh had been guilty of misconduct; the preservation order that Ms. Singh had obtained was reasonably sought and obtained; while Mr. Singh was successful, it was on the basis of a “technicality”; and Ms. Singh is indigent, owing largely to the alleged misappropriation by Mr. Singh. A significant portion of the lengthy written submissions constitutes argument as to the merits of the order made arising from the hearing of the motion on October 27, 2015. She asks that an order be made that Mr. Singh pay costs to her.

[9] Pursuant to rule 24(1) of the Rules of Civil Procedure, the presumption operates and Mr. Singh is entitled to costs. On this record, I am not persuaded that Mr. Singh has been guilty of misconduct and I have no evidence at this stage in the proceedings that Ms. Singh is indigent, let alone that such indigence is attributable to the alleged misappropriation by Mr. Singh. The fact that Ms. Singh has obtained a fee waiver so that she does not have to pay court fees such as interpreter fees does not justify the finding that Ms. Singh asks me to make without evidence. I do not accept the submission that Mr. Singh’s success was attributed to a “technicality”.

[10] At the conclusion of the submissions on October 27, 2015, Ms. Singh provided a costs outline which appeared to indicate that Zev Wise (articling student) had accumulated 10 hours at $200 per hour and had allocated 4 hours for the “anticipated appearance” on October 27 for a total of $3164. As indicated in my ruling dated October 21, 2015 ONSC 6648 I declined to permit Zev Wise to represent Ms. Singh and for that reason the costs outline is irrelevant. But it does demonstrate what Ms. Singh would have said was a reasonable amount of costs if she had been successful.

[11] I do not agree that this is a case for full indemnity costs. The additional work was required because Ms. Singh contravened my direction to limit her motion record to 50 pages and in fact delivered a record significantly greater than my direction. The hours Mr. Toor expended to respond to that record should be recognized but not at a full indemnity rate.

Order

ORDER TO GO AS FOLLOWS:

[12] Ms. Singh shall pay to Mr. Singh costs of the motion heard October 27, 2015 in the amount of $3164 plus HST which she shall pay by June 20, 2016.

Kiteley J. Date: May 19, 2016.