Court File and Parties

COURT FILE NO.: CV-11-439398

DATE: 20170726

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Chand Morningside Plaza Inc. and Joshi Group of Companies Ltd., Plaintiff

AND:

Healthy Lifestyle Medical Group Inc., Rochak Badhwar, Gore Doctors Medical Inc., Ashok Badhwar, Usha Badhwar, Aash Karia, Bindaas Capital Inc., and Marvin Talsky, Defendants

BEFORE: Pollak J.

COUNSEL: Jonathan Rosenstein, for the Plaintiffs

Jeb Assqf, Defendants

HEARD: October 6, 2016

COSTS ENDORSEMENT

[1] I have read and considered the submissions of the parties, and I have taken into account the factors set out in Rule 49 and Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg.

194. I am required to award costs that are reasonable and fair. See Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

[2] In response to the request for clarification made by the Plaintiffs in their costs submissions, the award of the Court is set out in a paragraph 15 of the endorsement. The Plaintiffs were successful on the motion and in the action against the Defendants Rochak Badhwar, Ashok Badhwar, and Usha Badhwar. They were granted summary and/or default judgment against these Defendants and the right to enforce the mortgage in question. No further relief on the motion was granted.

[3] The Plaintiffs submit that they should be awarded costs of the action, including the motion for summary judgment, on a substantial indemnity scale. They base this submission on their success on the motion (and in the action), and rely on a term.in the mortgage which refers to legal costs being recoverable on a "solicitor and his own client basis".

[4] However, the request for substantial indemnity costs on the basis of the mortgage is premature. If the judgment is paid by the Defendants, there will be no need to enforce the terms of the mortgage. It is not yet known whether the judgment against the Defendants will be paid without the IJecessity of enforcing the mortgage against the Defendants.

[5] On this basis the successful Plaintiffs are entitled to costs of the action on a partial indemnity basis. The amount of these costs must be determined by the agreement reached between the parties at the motion. Specifically, the parties agreed that the successful party on the motion would be awarded partial indemnity costs of $14,000 for the motion. Since the motion was determinative of the action, the partial indemnity costs for the action as a whole must be fairly close to the amount of $14,000. Ifthe parties cannot agree on what the partial indemnity costs of the action should be, based on their agreement of costs for the motion, the Court directs the Plaintiff to refer this account to an assessment officer for an assessment of this amount.

[6] As a minimum the Defendants are directed to pay costs of $14,000 to the Plaintiffs if the parties fail to reach an agreement or if this matter is not referred to assessment by the Plaintiffs within 30 days of today's date.

Date: July 26, 2017

Pollak J.