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] By ruling issued June 16th, 2016, I granted a motion for summary judgment. The action of the plaintiffs, Nadine Theresa Smith and Shane Davidson Smith, as against the named defendant Capital Direct Lending Corporation was dismissed with costs to be assessed on a full indemnity based.

[2] I received a costs outline and detailed dockets from counsel for Capital Direct.

[3] In considering the factors listed under Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the context of the action must be paramount. The plaintiff by counterclaim, Nadine Smith and Shane Smith brought an action for approximately $1,500,000.00 for breach of contract, negligence and rescission of a mortgage by way of a counterclaim after being pursued for default in payment of a mortgage which was owed by the Smiths to the plaintiff Kheen Investments Ltd. in the main action.

[4] This was a significant claim with significant exposure for all parties who were named defendants in the action brought by the Smiths.

[5] In my view, these were reasonably complex proceedings with a multiplicity of parties and a complex web of transactions for the court to consider. Understandably, counsel were required to spend a significant amount of time to learn the file, prepare the appropriate documents to bring this summary judgment motion and then to ably and competently assist the court as the time of submissions.

[6] In my ruling I found the Smith’s position “totally lacked credibility.” In the final paragraph of my ruling, just prior to the conclusion to the paragraph entitled “Conclusion” I noted that

“In my view this action has simply been an effort by people who have spent beyond their means, mortgaged their property to the roof, and thereafter decided to blame everyone but themselves for their difficulties.”

[7] I clearly found this to be a meritless counterclaim based on evasive conduct. It was for that reason that I made the determination that costs should be recovered on a full indemnity basis to reflect that the court will deal firmly with parties who attempt to delay and deny legitimate claims.

[8] From review of the file, it is also evident that the Smiths did actually continue to delay this matter through to the actual day of hearing. On a date scheduled for this motion to be argued before me, a further adjournment was sought despite the Smiths being aware of the return date and having consented to that date some months earlier. They clearly were aware that Kheen Investments were having to pay the first mortgage owing to Capital Direct in order to protect their second mortgage position.

[9] I further note that in a Request to Demand for Particulars, the Smiths simply replied “no monies were advanced under the 142 Ontario Inc. charge to the defendants, plaintiffs by counterclaim.” That statement was patently false based on the evidence placed before this court.

[10] I reviewed the billing rates claimed by counsel for Capital Direct and find them to be appropriate and fair. I further reviewed the detailed dockets helpfully provided to the court and find that the services rendered therein were appropriate and not excessive. Clearly the amount claimed is within the reasonable expectations of the parties.

Conclusion

[11] It is ordered that Nadine Theresa Smith and Shane Davidson Smith shall pay Capital Direct Lending Corporation its costs of this action on a substantial indemnity basis as follows:

a) Fees: $23,579.00 b) HST: $3065.27 c) Disbursements: $16,064.40 Total: $28,308.67

Turnbull, J Date: September 14, 2016