COURT FILE NO.: 08-CV-347902PD3
MOTION HEARD: October 13, 2016
SUPERIOR COURT OF JUSTICE - ONTARIO
Re: Kersasp Shekhdar Plaintiff
v.
Beard Winter LLP and Robert Harason Defendants
BEFORE: Master Thomas Hawkins
APPEARANCES: Robert Winterstein for moving defendants Fax: (416) 865-6636
Kersasp Shekhdar, responding plaintiff in person (participating by conference telephone call) Email: kds_legal@zoho.com
REASONS FOR DECISION
Nature of Motion
[1] This is a motion by the defendants for an order under subrules 57.03(1) and (2) and rule 60.12 of the Rules of Civil Procedure dismissing this action with costs on the ground that the plaintiff has failed to pay various orders directing him to pay costs to the defendants.
[2] Subrules 57.03(1) and (2) provide as follows.
57.03 (1) On the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall,
(a) fix costs of the motion and order them to be paid within 30 days; or
(b) in an exceptional case, refer the costs of the motion for assessment under Rule 58 and order them to be paid within 30 days after assessment.
(2) Where a party fails to pay the costs of a motion as required under subrule (1), the court may dismiss or stay the party’s proceeding, strike out the party’s defence or make such other order as is just.
[3] Rule 60.12 provides as follows.
60.12 Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules,
(a) stay the party’s proceeding;
(b) dismiss the party’s proceeding or strike out the party’s defence; or
(c) make such other order as is just.
Some Background Facts
[4] There are two actions relevant to this motion.
[5] This action is one by Mr. Shekhdar against his former lawyers for alleged negligence in their handling of a wrongful dismissal action by Mr. Shekhdar against his former employer. I shall call this action the legal malpractice action.
[6] The other action was one by Beard Winter LLP, the law firm which represented Mr. Shekhdar in the wrongful dismissal action against Mr. Shekhdar’s former employer. In this other action Beard Winter LLP sought to recover fees and disbursements billed to Mr. Shekhdar for services rendered to him in connection with the wrongful dismissal action against his former employer. I shall call this other action the fee recovery action.
[7] The fee recovery action is no longer pending. In a decision released December 31, 2014 Master Short gave Beard Winter LLP leave to discontinue the fee recovery action upon payment of $1,000 to Mr. Shekhdar. At the same time, Master Short varied the terms of certain prior costs awards payable by Mr. Shekhdar to Beard Winter LLP or Robert Harason or both.
[8] Both sides appealed from Master Short’s December 31, 2014 order. Madam Justice Harvison-Young heard both appeals on June 29, 2015 while sitting as a single judge of the Divisional Court.
[9] In reasons for decision released on August 17, 2015 Madam Justice Harvison-Young allowed the appeal of Beard Winter LLP. She held that Master Short had no jurisdiction to vary the payment terms of the various prior costs awards against Mr. Shekhdar because they were all orders of judges of the Superior Court of Justice, the Divisional Court or the Court of Appeal for Ontario. Masters do not have jurisdiction to hear a motion to set aside, vary or amend an order of a judge. See subrule 37.02(2)(b). Madam Justice Harvison-Young held that those prior costs orders were all payable in accordance with their original terms.
[10] Madam Justice Harvison-Young held that her August 17, 2015 decision applied to both Master Short’s December 31, 2014 decision and to a prior April 2, 2014 decision of Master Short in which he had also varied the payment terms of orders made by judges in both actions.
[11] Madam Justice Harvison-Young did not set aside that part of Master Short’s December 31, 2014 order granting Beard Winter LLP leave to discontinue the fee recovery action.
[12] The legal malpractice action is still pending. However, on June 3, 2015 as part of his disposition of a motion by Mr. Shekhdar for an order extending the date by which Mr. Shekhdar was to set the legal malpractice action down for trial, Master Graham ordered as follows.
[13] As a term of the order granting Mr. Shekhdar an extension to May 21, 2016 of the deadline by which Mr. Shekhdar was to set the legal malpractice action down for trial, Mr. Shekhdar was to pay Beard Winter LLP by September 4, 2015 the $3,000 in costs which Mr. Justice Jurianz had awarded to Beard Winter LLP in both actions on October 7, 2010.
[14] At the same time Master Graham made another term of that order. If Mr. Shekhdar failed to pay those costs by September 4, 2015 the legal malpractice action would be deemed to be stayed.
[15] Finally, as part of the same order, Master Graham provided that until the $3,000 in costs was paid, Mr. Shekhdar was not to bring any further motions in the legal malpractice action without leave of the court.
[16] Mr. Shekhdar has not paid the $3,000 in costs awarded by Mr. Justice Jurianz. That being so, the legal malpractice action is stayed.
[17] I do not regard Master Graham’s June 3, 2015 order as vulnerable to attack on the ground that Master Graham lacked the jurisdiction to make that order, as was the case with Master Short’s orders of April 2 and December 31, 2014.
[18] I say so for the following reasons.
[19] Master Graham’s June 3, 2015 order did not purport to vary the terms of the order for payment of costs made by Mr. Justice Jurianz on October 7, 2010. Those costs were and are payable as Mr. Justice Jurianz ordered on October 7, 2010.
[20] Rather, I regard Master Graham’s June 3, 2015 order as having offered Mr. Shekhdar three incentives to make belated payment of the costs which Mr. Justice Jurianz awarded on October 7, 2010.
[21] The first incentive was a positive one. If Mr. Shekhdar paid by September 4, 2015 the $3,000 in costs which Mr. Justice Jurianz awarded to Beard Winter LLP, he would get the extension in the time for setting the legal malpractice action down for trial which he sought.
[22] The second incentive was a negative one. If Mr. Shekhdar failed to pay Beard Winter LLP by September 4, 2015 the $3,000 in costs which Mr. Justice Jurianz awarded on October 7, 2010 the court, though Master Graham, would impose a sanction. That sanction was that Mr. Shekhdar’s legal malpractice action would be deemed to be stayed.
[23] The third incentive was also a negative one. Master Graham set out another term of his order that imposed the following sanction. Until the $3,000 in costs awarded by Mr. Justice Jurianz was paid, Mr. Shekhdar was not to bring any further motions in the legal malpractice action without leave of the court.
Outstanding Costs Orders Underlying this Motion
[24] In support of its present motion Beard Winter LLP relies upon eight orders which awarded costs to payable by Mr. Shekhdar to Beard Winter LLP alone or to both Beard Winter LLP and Robert Harason jointly. Four of those orders were made in both the legal malpractice action and the fee recovery action. Two of those orders were made in the legal malpractice action only. Two were made in the fee recovery action only.
[25] As I mentioned at the outset of these reasons for decision, the defendants bring this motion under both subrule 57.03(1) and (2) and rule 60.12. In Ortepi v. Pozzuoli (2008), 2008 CanLII 6992 (ON SC), 89 O.R. (3d) 452 and again in his reasons for decision of June 3, 2015 in the legal malpractice action (at paragraph 18) Master Graham held that the sanctions under subrule 57.03(2) and rule 60.12 are available only in the same action in which an unpaid costs award was made.
[26] I respectfully agree.
[27] That being so, in deciding this motion I will disregard the two unpaid costs awards made in the fee recovery action.
[28] There remain six unpaid costs awards made either in both the legal malpractice action and the fee recovery action or in the legal malpractice action alone. Apart from interest, these six unpaid costs awards total $34,000, before deducting a payment of $5,000 which Mr. Shekhdar made in July 2014 pursuant to Master Short’s order of April 2, 2014. This was the only payment of a costs order which Mr. Shekhdar has made. That leaves a balance owing of $29,000 apart from interest.
[29] The sanctions under subrule 57.03(2) are available only if the unpaid costs order was made in the course of a motion. If the unpaid costs award was made in the course of a step in a proceeding that was not a motion, subrule 57.03(2) does not apply.
[30] The sanctions under rule 60.12 are available if the unpaid costs order was an interlocutory order. All six of the unpaid costs orders made in the legal malpractice action only or in both the legal malpractice action and the fee recovery action were interlocutory orders. The sanctions under rule 60.12 are therefore relevant to all six orders.
[31] It is therefore unnecessary for me to decide whether any of the six unpaid costs awards was made in the course of a step in a proceeding that was not a motion.
[32] Only two of the six unpaid costs orders are relatively recent. Four of the six orders are over six years old. The oldest order was made almost eight years ago.
Events Leading to Present Motion
[33] On March 7, 2016 Master Graham recused himself from hearing the balance of a motion by the defendants in the legal malpractice action like the present motion. He directed that the motion proceed by way of special appointment to be requested from the Masters’ Team Leader, Master McAfee.
[34] Master Graham did not decide the merits of the motion before him on March 7, 2016 before recusing himself.
[35] On May 17, 2016 the defendants in the legal malpractice action sent a requisition to the Master’s Administration Office to schedule as a long motion their motion to dismiss the legal malpractice action.
[36] On May 30, 2016 Master McAfee, as Team Leader of the Toronto region masters, made an order assigning me to hear the defendants’ long motion to dismiss the legal malpractice action.
[37] I decided to hear the motion as a regular motion, that is one lasting no more than two hours. I did so because I felt that the important issues on the motion were relatively uncomplicated. In the end, argument of the motion took about 90 minutes.
[38] Through my assistant I offered the parties three dates in October 2016 for me to hear the motion.
[39] On August 9, 2016 and after hearing back from both sides, I made an order that the motion would proceed on October 13, 2016 commencing at 9:30 a.m. Toronto time.
[40] On August 13, 2016 Mr. Shekhdar served a notice of appeal to a judge seeking in part an order setting aside my order of August 9, 2016 fixing the date of October 13, 2016 for the hearing of this motion, as well as other relief. Mr. Shekhdar’s appeal was scheduled to be heard on October 28, 2016.
[41] On October 28, 2016 the presiding judge, Mr. Justice Stinson, ruled that he would not hear Mr. Shekhdar’s appeal until after I had released my decision on the defendants’ motion to dismiss the legal malpractice action.
[42] Both sides delivered to me material for use on the defendants’ motion to dismiss the legal malpractice action. Argument of the defendants’ motion proceeded as scheduled on October 13, 2016. At the end of oral argument that day, I reserved my decision.
[43] The defendants’ motion was supported by an affidavit of Neesa Craven sworn September 12, 2016. Ms. Craven is a law clerk in the law firm which represents the defendants.
[44] In her affidavit Ms. Craven provides a considerable amount of background information on the legal malpractice action and the fee recovery action, including the history of the steps in those actions with an emphasis on costs awards in favour of the defendants in this action and on the various appeals both sides have taken. Ms. Craven also provides more limited information on Mr. Shekhdar’s wrongful dismissal action against his former employer.
[45] Ms. Craven’s affidavit includes a chart listing eight orders that direct Mr. Shekhdar to pay costs. This chart leaves the reader with the impression that all eight of those orders were made in the legal malpractice action. This is not correct.
[46] However, because Ms. Craven’s affidavit includes either the formal order awarding costs (in four instances) or the reasons for decision awarding costs (in the other four instances) I was able to determine the correct state of affairs.
[47] As I have explained in the background facts section of these reasons for decision, four of the orders were made in both the legal malpractice action and the fee recovery action. A further two of the orders were made in the legal malpractice action only. The remaining two orders were made in the fee recovery action only. I have explained in paragraphs [25] to [27] above why the two unpaid costs awards made in the fee recovery action only cannot form a basis for dismissing the legal malpractice action.
[48] Ms. Craven does disclose in her affidavit that Mr. Shekhdar has paid $5,000 towards the costs owing in the legal malpractice action pursuant to Master Short’s order of April 2, 2014.
Argument of Defendants’ Motion on October 13, 2016
[49] The motion by Beard Winter LLP and Robert Harason, the defendants in the legal malpractice action, was argued on October 13, 2016. The moving defendants sought an order under subrules 57.03(1) and (2) and rule 60.12 of the Rules of Civil Procedure dismissing the legal malpractice action on the ground that the plaintiff Mr. Shekhdar has failed to pay several awards of costs made by judges of this court, the Divisional Court and the Court of Appeal for Ontario. The awards of costs were payable by Mr. Shekhdar to the moving defendants.
[50] The evidence before me shows that there are six unpaid awards of costs made in favour of the moving defendants in the legal malpractice action alone or in both the legal malpractice action and the fee recovery action. Most of these orders have been unpaid for significant periods of time. One order has been outstanding for seven months. However four of the other orders have been outstanding for over six years.
[51] Apart from interest, the total amount owing under the six orders, after giving Mr. Shekhdar credit for a $5,000 payment, is $29,000.
[52] In his responding motion record Mr. Shekhdar does not claim to have paid more than $5,000 towards these costs orders and awards. In his oral submissions on October 13, 2016 he never claimed to have paid more than $5,000 towards these costs orders and awards. Mr. Shekhdar has not indicated that he will ever pay these costs orders and awards. He has not asked for time to pay the costs orders and awards.
[53] The moving defendants submit that in these circumstances, the appropriate sanction under subrule 57.03(2) (to the extent that subrule 57.03(2)) applies) and under rule 60.12 is an order dismissing the legal malpractice action with costs to the defendants.
[54] During argument on October 13, 2016 and in the motion record which he delivered in response to this motion, Mr. Shekhdar advanced a number of arguments in support of his position that this motion should be dismissed.
[55] The first point which Mr. Shekhdar made during oral argument was that by order made April 2, 2014 this court had in effect already dismissed the motion before me.
[56] I understand Mr. Shekhdar to be referring to Master Short’s reasons for decision of that date. At paragraphs [110] and [111] of his reasons Master Short made an order that if Mr. Shekhdar paid by a stated deadline $5,000 towards the outstanding costs awards against him in the legal malpractice action, the balance of those costs awards would not be payable until the final determination of the fee recovery action. Mr. Shekhdar did pay the $5,000 in costs within the time limit which Master Short had set.
[57] The fee recovery action was discontinued on December 31, 2014 pursuant to leave granted by Master Short.
[58] In reasons for decision released on that date, Master Short ruled (at paragraph 54) that this discontinuance was not the “final determination” he had referred to on April 2, 2014. Nevertheless, Master Short ruled on December 31, 2014 that the prior costs awards in the legal malpractice action were also not payable until the judge conducting the trial of the legal malpractice action decided liability for the previous costs awards in that action.
[59] Since the legal malpractice action has not yet gone to trial, Mr. Shekhdar takes the position (as I understand his argument) that those costs awards are not yet payable with the result that they cannot form a basis for the relief which the defendants in the legal malpractice action seek on this motion.
[60] In response to this argument by Mr. Shekhdar, the moving defendants submit as follows.
[61] First, Master Short’s rulings deferring the liability to pay costs awards initially made against Mr. Shekhdar do not apply to two of the costs awards against Mr. Shekhdar which the moving defendants rely upon in the present motion. This is so because those costs awards were made after Master Short’s rulings of April 2 and December 31, 2014. Two of those later costs awards against Mr. Shekhdar totaling $10,000 were made in the legal malpractice action.
[62] Secondly, the moving defendants submit, both sides appealed from Master Short’s costs rulings. Madam Justice Harvison-Young heard those appeals. In decisions released on August 17 and November 23, 2015 Madam Justice Harvison-Young ruled that Master Short had no jurisdiction to vary the terms of prior costs awards made by judges. She said that those costs awards were payable in accordance with their original terms.
[63] I therefore conclude that Master Short’s decisions of April 2 and December 31, 2014 are not a bar to this motion by the defendants in the legal malpractice action.
[64] Mr. Shekhdar’s second submission on October 13, 2016 was as follows. He has appealed to a judge of this court from both Master McAfee’s order of May 30, 2016 directing me to hear the present motion by the defendants in the legal malpractice action and my order of August 9, 2016 directing that the defendants’ present motion would be heard as a regular motion (that is, one taking not more than two hours to argue) and that it would be heard on October 13, 2016.
[65] Although my notes of the oral arguments made on October 13, 2016 indicate that Mr. Shekhdar said that he had appealed both my order of August 9, 2016 and Master McAfee’s order of May 30, 2016, Mr. Shekhdar’s Notice of Appeal to a judge is limited (in terms of masters’ orders) to my order. He has not appealed from Master McAfee’s order.
[66] Mr. Shekhdar’s appeal was still pending on October 13, 2016 with the result, Mr. Shekhdar submits, that I was barred from hearing the defendants’ motion, at least until that appeal was disposed of.
[67] Mr. Shekhdars’ appeal came on for hearing before Mr. Justice Stinson on October 28, 2016. He stated that he would not hear Mr. Shekhdar’s appeal until after I released my decision on this motion by the defendants in the legal malpractice action.
[68] I did not begin writing these reasons for decision until after I learned of Mr. Justice Stinson’s ruling of October 28, 2016.
[69] Before releasing these reasons for decision I made no findings of fact and no rulings of law on the merits of the defendants’ present motion.
[70] In light of the October 28, 2016 ruling by Mr. Justice Stinson I will render my decision on the defendants’ motion at this time and not first await the final disposition of Mr. Shekhdar’s appeal. I am not aware that either side has appealed from Mr. Justice Stinson’s October 28, 2016 ruling.
[71] Mr. Shekhdar objects to the wording of my August 9, 2016 order directing that the defendants’ motion would proceed before me on October 13, 2016. My order provided in part as follows.
“The defendants’ motion for an order dismissing this action with costs because the plaintiff has failed to pay several costs orders will proceed ….”
[72] Mr. Shekhdar submits that I should have said “… because the plaintiff has allegedly failed to pay several costs orders …”. He submits that my failure to say “allegedly failed to pay” and my reference “to several costs orders” means that I have prejudged this motion against him and that my statement that he had failed to pay several costs orders means that I treated the issue of whether or not he had failed to pay any costs orders as a fact established in favour of the defendants before the motion was argued.
[73] I did not intend to make and did not make any finding of fact when I used the words in my August 9, 2016 order to which Mr. Shekhdar objects. I was simply describing the basis on which the defendants were bringing their motion.
[74] The moving defendants’ Fresh as Amended Motion Record is dated September 12, 2016. This is over a month after I made my August 9, 2016 order.
[75] It is clear from a reading of that motion record that the moving defendants did not take the wording of my August 9, 2016 order as meaning that I had already decided in their favour the issue of whether or not Mr. Shekhdar had failed to pay any costs orders. The moving defendants’ Fresh as Amended Motion Record contains evidence of costs orders including when those orders were made, to whom costs were awarded, how much costs were awarded, who made the costs orders, in what action those costs orders were made, evidence that Mr. Shekhdar has paid only $5,000 towards those costs orders and evidence as to the balance owing to the moving defendants apart from interest.
[76] Mr. Shekhdar’s undated Responding Motion Record was filed on September 28, 2016. As I have said, nowhere in that Responding Motion Record does Mr. Shekhdar provide any evidence that he has paid more than $5,000 towards the costs orders forming the basis of the defendants’ motion.
[77] Mr. Shekhdar’s basic position seems to be that the costs orders in question including their substantive terms are so tainted with bias against him or with corruption or both that those orders are of no force or effect.
[78] Mr. Shekhdar has made allegations that a great many of the masters and judges who have heard motions and appeals in the fee recovery action and the legal malpractice action are biased against him or are corrupt. So far as I am aware, Mr. Shekhdar has never provided any actual evidence that any of these masters and judges are biased or corrupt. None of the masters and judges who have heard these motions and appeals has ever concluded that any of the costs orders forming the basis of the defendants’ present motion is tainted with bias against Mr. Shekhdar or with corruption.
[79] Simply put, Mr. Shekhdar’s allegations of bias and corruption are not proven. I reject them. Speaking personally, I am not biased against Mr. Shekhdar. I have endeavoured to decide this motion on its merits and on the relevant evidence before me. The fact that Mr. Shekhdar is from the Republic of Pakistan has no relevance to this motion.
[80] The third submission which Mr. Shekhdar made on October 13, 2016 is that the defendants’ motion is supported by an affidavit of Ms. Craven who has made admissions undermining statements made in her affidavit. I take Mr. Shekhdar to mean that these admissions undermine the moving defendants’ position on this motion to such a degree that I should dismiss this motion. The moving defendants dispute this submission that Ms. Craven has made such admissions.
[81] Mr. Shekhdar did serve a 63 paragraph Request to Admit in the legal malpractice under Rule 51 dated August 14, 2016 and directed to Ms. Craven amongst many others. The next day the moving defendants served a one page Response to Request to Admit in which they refused to admit any of the allegations in Mr. Shekhdar’s Request to Admit.
[82] That Response to Request to Admit is found in Mr. Shekhdar’s Responding Motion Record. Mr. Shekhdar’s submission that Ms. Craven has made admissions on this motion of such magnitude that I should dismiss this motion is not correct. She has not done so.
[83] Mr. Shekhdar’s Request to Admit is not confined to the moving defendants’ present motion to dismiss the legal malpractice action. It is made in the legal malpractice action generally. As the moving defendants point out, that action was stayed by Master Graham’s order of June 3, 2015.
[84] Mr. Shekhdar did not seek leave to serve a request to admit.
[85] Rule 51 is limited in its application to requests to admit made by one party and directed to another party. Mr. Shekhdar is a party to the legal malpractice action. He is the plaintiff. However Ms. Craven is not a party to that action. Rule 51 has no application to her in that situation.
[86] In summary, Ms. Craven has not made any admissions that undermine her affidavit, to such a degree that I should dismiss this motion.
[87] Mr. Shekhdar’s Responding Motion Record contains a second Request to Admit dated September 16, 2015 that is 23 paragraphs long. This second request to admit is directed to Ms. Craven and to two other non-parties, namely the Law Society of Upper Canada and the Province of Ontario. Given its date (September 16, 2015) it does not appear to have been served in connection with the present motion by the defendants. The defendants’ Fresh as Amended Motion Record is dated September 12, 2016, almost a year later. Since this request to admit is not directed to any party to this action, my comments in paragraph [85] about the scope of Rule 51 apply here as well.
[88] Mr. Shekhdar’s Responding Motion Record also contains a third “Informal Request to Admit Facts” dated November 16, 2015 directed to defence counsel Mr. Winterstein. This request to admit was not served in connection with the present motion and was not directed to a party to either the fee recovery action or the legal malpractice action.
[89] The fourth submission which Mr. Shekhdar made on October 13, 2016 was that he wanted to cross-examine Ms. Craven but defence counsel prevented him from doing so.
[90] Defence counsel submits that Mr. Shekhdar has never served a proper notice of examination seeking to cross-examine Ms. Craven. The only notice of examination before me (dated March 7, 2016) is found in Mr. Shekhdar’s Responding Motion Record. It does not state where Ms. Craven is to attend to be cross-examined.
[91] Further, this notice of examination by Mr. Shekhdar seeks to cross-examine Ms. Craven on her affidavit sworn February 10, 2016. The only affidavit which Ms. Craven has sworn in connection with the present motion was sworn on September 12, 2016. Her affidavit of February 10, 2016 was not used on the present motion.
[92] Defence counsel also submitted that Mr. Shekhdar could have sought leave to bring a motion to compel Ms. Craven to attend to be cross-examined on her September 12, 2016 affidavit but did not do so. As I have pointed out in paragraphs [12] to [15] above, on June 3, 2015 Master Graham made an order that Mr. Shekhdar was not to bring any further motions in the legal malpractice action without leave of the court until he paid the $3,000 in costs which Mr. Justice Jurianz awarded to Beard Winter LLP in both the fee recovery action and the legal malpractice action on October 7, 2010. Mr. Shekhdar has yet to pay those costs.
[93] The material before me does not include any notice of examination by Mr. Shekhdar seeking to cross-examine Ms. Craven on her September 12, 2016 affidavit.
[94] On the evidence before me Mr. Shekhdar has not taken the necessary preliminary steps that would entitle him either to cross-examine Ms. Craven on her September 12, 2016 affidavit or to obtain a court order directing Ms. Craven to attend to be cross-examined on that affidavit.
[95] That being so, I decline to dismiss the defendants’ present motion on the ground that Mr. Shekhdar was prevented from cross-examining Ms. Craven on her September 12, 2016 affidavit.
[96] Mr. Shekhdar’s fifth submission on October 13, 2016 was that he has been victimized by the application of racist double standards, and by prejudice and corruption exercised by judges, masters and others. At the risk of repeating myself, Mr. Shekhdar has utterly failed to prove these very serious accusations which he has made over and over. He has not even attempted to prove them. I reject them entirely.
[97] The materials which Mr. Shekhdar has filed for use on this motion demonstrate that he works hard in preparing his written materials and that he has a good understanding of the Rules of Civil Procedure. These positive qualities in Mr. Shekhdar are offset by the fact that he seems incapable of treating with civility judges, masters, lawyers and paralegals who either rule against him, or who oppose him in litigation, or assist those who oppose him.
[98] Mr. Shekhdar has cruelly abused Ms. Craven. He has accused her of perjury. He has accused Gavin Tighe of Gardiner Roberts LLP of suborning Ms. Craven’s supposed perjury. These accusations have not been proven. I reject them completely.
[99] Mr. Shekhdar’s materials are full of blatant misstatements of fact. For example there are numerous instances where he claims that Ms. Craven has made damaging admissions. This is clearly not the case.
[100] Mr. Shekhdar questions whether Ms. Craven has the requisite knowledge to swear her affidavit of September 12, 2016. In the first paragraph of her affidavit Ms. Craven states that she is a law clerk in the firm of Gardiner Roberts LLP, the lawyers for the defendants in the legal malpractice action.
[101] Ms. Craven goes on to state in the same paragraph that she has personal knowledge of the matters to which she deposes except for information which arises from sources other than her own personal knowledge, the sources of which are stated and all of which she does verily believe.
[102] With one exception, there are no statements in her affidavit that are based on information received from others. I therefore draw the conclusion that virtually all the statements of fact in her affidavit are based on her personal knowledge.
[103] The nature of the statements of fact in her affidavit are such that she could easily have gained personal knowledge of them by assisting lawyers at Gardiner Roberts LLP who were working on the various steps taken to defend the legal malpractice action including assessing the impact on that defence of steps taken in the fee recovery action. Here I note that four of the eight costs orders which Ms. Craven refers to in her affidavit were made in both actions.
[104] In these circumstances, I accept Ms. Craven’s evidence that she does indeed have the personal knowledge which she claims in her affidavit to have.
[105] Mr. Shekhdar’s sixth point made in his October 13, 2016 submissions is that he has sworn a multijurisdiction affidavit which includes a request to admit. I understand that Mr. Shekhdar is referring to the affidavit and 63 paragraph request to admit found at tabs 11 and 12 of his Responding Motion Record.
[106] This is the same request to admit that I have dealt with in paragraphs [81] to [87] of these Reasons for Decision. I will not repeat those paragraphs here.
[107] Mr. Shekhdar’s seventh point made on October 13, 2016 is that there is an implied agreement between him and the moving defendants which operates as a bar to the moving defendants’ present motion to dismiss the legal malpractice action. The relevant term of this implied agreement was that if Mr. Shekhdar paid $5,000 in costs to the defendants (which he did pay) he could take the legal malpractice action to trial without paying further costs awarded in prior orders.
[108] I understand that what Mr. Shekhdar refers to as this implied agreement is actually paragraphs [110] to [112] of Master Short’s Reasons for Decision of April 2, 2014 as modified by his December 31, 2014 Reasons for Decision. As I have explained in paragraphs [7] to [10] of these Reasons for Decision, Madam Justice Harvison-Young allowed the moving defendants’ appeal from those provisions of Master Short’s Reasons for Decision.
[109] That being so, the implied agreement to which Mr. Shekhdar refers is not a bar to the moving defendants’ present motion to dismiss the legal malpractice action.
[110] Mr. Shekhdar’s eighth point made on October 13, 2016 was that both Madam Justice Harvison-Young’s August 17, 2015 order and Master Graham’s order of June 3, 2015 staying the legal malpractice action if Mr. Shekhdar failed to pay certain costs to Beard Winter, LLP by September 4, 2015 are under appeal.
[111] At the moment, this is not correct. Mr. Shekhdar did bring what he called a “Panel Review Motion” seeking to vary Madam Justice Harvison-Young’s August 17, 2015 costs award as finalized in her endorsement of November 23, 2015. Associate Chief Justice Marrocco heard Mr. Shekhdar’s Panel Review Motion as a motion in writing. At the Chief Justice’s direction, Associate Chief Justice Marrocco is responsible for oversight of the Divisional Court.
[112] On March 15, 2016 Associate Chief Justice Marrocco quashed Mr. Shekhdar’s Panel Review Motion because the Divisional Court did not have jurisdiction to hear that motion. He made no award of costs. His endorsement is found at tab 15 of the moving defendants’ Fresh as Amended Motion Record and at 2016 ONSC 1852.
[113] Mr. Shekhdar then brought a motion to the Court of Appeal for Ontario seeking an extension in the time for appealing from Madam Justice Harvison-Young’s August 17, 2015 Reasons and costs award and her resulting November 23, 2015 reasons settling the formal terms of her order.
[114] Mr. Shekhdar’s time extension motion came before Mr. Justice Doherty sitting as a single judge of the Court of Appeal on June 15, 2016. Mr. Shekhdar accused Mr. Justice Doherty of being biased against him. When Mr. Justice Doherty rejected Mr. Shekhdar’s allegations of bias and refused to recuse himself, Mr. Shekhdar refused to participate further in his own time extension motion.
[115] Mr. Justice Doherty dismissed Mr. Shekhdar’s time extension motion in an endorsement released on June 20, 2016. This endorsement may be found at tab 17 of the moving defendants’ Fresh as Amended Motion Record and at 2016 ONCA 493, 2016 ONCA493.
[116] Mr. Shekhdar then brought a “Panel Review Motion” seeking to review/vary/set aside the June 20, 2016 order of Mr. Justice Doherty. A panel of the Court of appeal for Ontario consisting of Justices Sharpe, Pepall and Hourigan dismissed Mr. Shekhdar’s motion on December 2, 2016, and awarded costs of $5,000 to Beard Winter LLP. Their endorsement may be found at 2016 ONCA 927, 2016ONCA927.
[117] Mr. Shekhdar has sent an email to the Masters’ Administration office in which he states that he intends to bring a motion seeking leave to appeal to the Supreme Court of Canada from this decision of the Court of Appeal for Ontario. Whether he will actually bring such a motion I do not know for certain.
[118] Mr. Shekhdar appealed Master Graham’s order of June 3, 2015 staying the legal malpractice action. Mr. Justice Diamond heard that appeal on November 18, 2015 and dismissed it in a revised endorsement released on November 20, 2015. He awarded costs of $7,000 to Beard Winter LLP. That revised endorsement can be found at tab 12 of the moving defendants’ Fresh as Amended Motion Record and at 2015 ONSC 7191. This costs award of $7,000 forms part of the basis for the defendants’ present motion.
[119] Mr. Shekhdar then brought a motion for leave to appeal the order of Mr. Justice Diamond of November 20, 2015. Madam Justice Sachs heard that motion for leave to appeal as a motion in writing. In reasons for decision released on May 3, 2016 she dismissed Mr. Shekhdar’s motion for leave to appeal. Her endorsement may be found at tab 16 of the moving defendants’ Fresh as Amended Motion Record and at 2016 ONSC 2934, 2016 ONSC2934. She awarded the moving defendants costs of $3,000. This costs award also forms part of the basis for the defendants’ present motion.
[120] These two costs orders are not under appeal. They were made after Mr. Shekhdar began his present series of appeals by appealing from Master Graham.
[121] Mr. Shekhdar’s ninth and last oral submission made on October 13, 2016 is a variation of his seventh submission about an implied agreement which he submits is a bar to the present motion. I have dealt with Mr. Shekhdar’s implied agreement argument in paragraphs [107] to [109] above. That argument is not a bar to the present motion.
Result
[122] There may be those who, if made aware of what has recently happened in the legal malpractice action, would feel that I should decline to decide the present motion until it is clear that Mr. Shekhdar has stopped bringing motions and/or appeals. That could take years and would be most unfair to Beard Winter LLP and Robert Harason.
[123] If the evidence before me on this motion indicated that Mr. Shekhdar was making progress in paying off the costs awards against him and, given a reasonable time to pay the balance owing before I imposed any sanction against him, Mr. Shekhdar would pay the balance, I would not impose the sanction of dismissal of the legal malpractice action at this time. However, that is not the evidence before me.
[124] By his conduct, Mr. Shekhdar has made it clear that he has no intention of ever paying anything more against the many costs awards made against him in the legal malpractice action. For me to give him a last chance to pay before I imposed a sanction against him would, in the present circumstances, be pointless.
[125] Mr. Shekhdar submits that all of the costs awards against him in the legal malpractice action are under appeal. As I have said, that is not correct. Mr. Shekhdar has not yet brought a motion for leave to appeal to the Supreme Court of Canada. Even if Mr. Shekhdar obtains leave to appeal to the Supreme Court of Canada and succeeds on that appeal, that would not affect all of the costs awards made against him in the legal malpractice action. That is so because two of those costs awards were made after Master Short made his rulings of April 2 and December 31, 2014 deferring the liability to pay costs awards initially made against Mr. Shekhdar. I refer to the $7,000 costs award which Mr. Justice Diamond made against Mr. Shekhdar on November 20, 2015 and to the $3,000 costs award which which Madam Justice Sachs made against Mr. Shekhdar on May 3, 2016. Those costs orders remain unpaid.
[126] At the risk of repeating myself, if I thought that, given one last opportunity to pay this $10,000 in costs, Mr. Shekhdar would do so, I would give him that opportunity and not impose the sanction of dismissal at this time of the legal malpractice action.
[127] For the following reasons I do not believe that given one last opportunity to pay costs, Mr. Shekhdar would do so.
[128] On September 17, 2015 Master Graham made an order that if Mr. Shekhdar did not pay certain costs awards made against Mr. Shekhdar by December 18, 2015 Beard Winter LLP was at liberty to move on notice to Mr. Shekhdar for an order dismissing the legal malpractice action.
[129] In other words, Mr. Shekhdar has known for over a year that if he failed to pay costs awards made against him, Mr. Shekhdar faced a real prospect that his legal malpractice would be dismissed. Despite this looming threat, Mr. Shekhdar paid nothing.
[130] When the Fresh as Amended Motion Record for the present motion was served on him in mid-September 2016, Mr. Shekhdar still paid nothing.
[131] Finally and most significantly, during argument of this motion on October 13, 2016 Mr. Shekhdar never offered to pay anything against the numerous costs awards made against him and never even asked for time to pay.
[132] For all these reasons, I have decided that on the evidence now before me the appropriate sanction under rule 60.12 is an order dismissing Mr. Shekhdar’s legal malpractice action. So ordered.
[133] I make this dismissal order subject to the following term. If Mr. Shekhdar (a) does bring a motion for leave to appeal to the Supreme Court of Canada from the order of the Court of Appeal for Ontario of December 2, 2016 dismissing his “Panel Review Motion”, (b) does obtain leave to appeal that December 2, 2016 order, and (c) is completely or substantially successful on the subsequent appeal to the Supreme Court of Canada, there may be as little as $5,000 owing on the costs awards underlying this motion. In that circumstance the amount owing (apart from interest) would be $5,000 and not $10,000 because of the $5,000 payment which Mr. Shekhdar made in July 2014 pursuant to Master Short’s order of April 2, 2014. Should all that happen, the circumstances respecting outstanding costs awards against Mr. Shekhdar will be very different from the circumstances now before me. Should that happen, Mr. Shekhdar may then promptly (a) move to set aside my order dismissing the legal malpractice action on whatever grounds seem appropriate, (including the ground that the circumstances have changed so much that the sanction of dismissal is no longer appropriate), and (b) as for other relief including one last opportunity to pay whatever costs then remain owing by him in the legal malpractice action.
Costs
[134] Any initial submissions (in a costs outline following Form 57B) are to be exchanged and filed with me by January 13, 2017.
[135] Any responding costs submissions not exceeding three pages in length are to be exchanged and filed with me by January 27, 2017.
(original signed)_____
Master Thomas Hawkins
Release Date: December 20, 2016