Court File and Parties

COURT FILE NO.: 12-37022 DATE: September 14, 2016 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kheen Investment Ltd. Plaintiff

AND:

Nadine Theresa Smith and Shane Davidson Smith Defendants

AND:

Nadine Theresa Smith and Shane Davidson Smith Plaintiffs by Counterclaim

AND:

Kheen Investment Ltd., Capital Direct Lending Corp., Damandeep-Singh Aujla, Daman Aujla Professional Corporation, and Rishi Vaid Defendants by Counterclaim

BEFORE: Turnbull, J.

COUNSEL: Doug Bourassa, for the Plaintiffs, Defendants by Counterclaim, Kheen Investment Ltd. Joseph M. Sereda, for the defendants, plaintiffs by counterclaim, Nadine Theresa Smith and Shane Davidson Smith Michael Bordin, for the defendants by counterclaim, Damandeep-Singh Aujla and Daman Aujla Professional Corporation Philip Garbutt, for the defendant by counterclaim, Capital Direct David Silver, for defendant by counterclaim, Rishi Vaid

Costs Endorsement

[1] Further to the court’s judgment that the plaintiffs’ action should be dismissed with costs payable on a full indemnity basis, I received a bill of costs and costs outline from the defendants by counterclaim, Damandeep-Singh Aujla and Daman Aujla Professional Corporation.

[2] The defendants by counterclaim, Damandeep-Singh Aujla and Daman Aujla Professional Corporation, seek their costs on a full indemnity basis pursuant to the reasons rendered by my decision dated June 16th, 2016.

[3] In assessing costs in such proceedings, Rule 57.01(01) is a guideline to assist the court in assessing reasonable scales of costs, quantum of costs, and disbursements.

[4] In my view, the proceedings were reasonably complex. There was a multiplicity of parties and a series of transactions at issue. From the ruling rendered by the cost, I clearly found that the Smiths were not credible and forthcoming with information required to support their claim. The claims of professional negligence against the solicitor Aujla required a detailed analysis and review of substantial law by his counsel. Aujla was required to bring a third party claim to obtain information required for the summary judgment motion and to add a party that should have been in the primary claim made by the Smiths. I further note that the defendant by counterclaim, Mr. Aujla initiated the summary judgment motions and the other defendants by counterclaim followed suit. These motions were all inter related and required all the defendants by counterclaim to work together. As a result, there were four motions for summary judgment with substantial materials filed before the court.

[5] As a professional person, the claims were of great importance to Mr. Aujla. His integrity and competence were questioned and in light of the fact that a breach of fiduciary duty and a breach of duty of trust to the Smiths were alleged, his integrity was also impugned. As I noted in the ruling rendered in this matter, this action was simply an effort by the Smiths to blame everyone but themselves for their financial difficulties.

[6] In my view, the Smiths delayed these proceedings and were evidently in breach of court ordered deadlines. As I noted, even on the day this motion was finally ordered to be heard before me, counsel for the Smiths were seeking a further adjournment despite being aware of a return date and having consented to the return date several months prior.

[7] I have reviewed the totality of the record and considered the factors under Rule 57.01 in assessing costs and I do not feel that any improper vexatious or unnecessary actions were taking on the part of counsel for Mr. Aujla. It is evident from the record that Mr. Aujla sought to bring the litigation against him to a conclusion as quickly as possible despite the attempts at delays by the Smiths and the added complexity of coordinating four summary judgment motions together to be heard at the same time. Failure to have taken those steps, in particular having the four summary judgment motions heard together, would have protracted the proceedings and resulted in unnecessary additional expense.

[8] I have taken into account that the Smiths refused to admit key facts in the Request to Demand for Particulars. In the summary judgment ruling, I specifically found facts which had been denied by the Smiths so that they could maintain their unfounded actions.

[9] I note that Mr. Bordin was called to the bar in 1998. His billing rate per hour is $325.00. Scott W. Beattie was called to the bar in 2008 and his billing rate per hour is $255.00. Shayne A. Beeksma was called to the bar in 2012 and his billing rate per hour is $190.00 while Jordan Diacur was called to the bar in 2014 and his billing rate per hour is $165.00.

[10] I find the rates charged to be reasonable and within the reasonable contemplation of the parties. I have reviewed the hours spent by each lawyer with respect to the totality of the proceedings. These are helpfully summarized in detail in the costs summary provided to the court.

[11] In the circumstances the defendants by counterclaim, Damandeep-Singh Aujla and Daman Aujla Professional corporation shall have their costs on a full indemnity basis as follows:

[12] A) Fees: $36861.00

[13] B) Disbursements: $1623.00 I specifically disallow the $221.00 claimed for Westlaw Research as I consider that as part of the overhead of a law firm representing parties in litigation. Hence the disbursements are reduced to $1623.00.

[14] C) HST on the above: $5002.92

[15] Total assessed costs: $43,486.92

Turnbull, J Date: September 14, 2016