Court File and Parties

COURT FILE NO.: 12-37022 DATE: 2017/07/07 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kheen Investments 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 on Motion for Summary Judgment

Turnbull, J.

[1] The court issued reasons on this summary judgment motion on June 16, 2016. The Smiths’ defence and counterclaim was dismissed and Kheen was granted summary Judgment with full indemnity costs to be paid by the Smiths to all the other parties. I directed that counsel provide me with brief written submissions on costs.

[2] Counsel who appeared on the motion for Kheen Investment Ltd. has been out of the office on an extended medical leave. Another lawyer in the firm only realized recently that the requested submissions on costs had not been submitted. The submissions were received in the court office April 24, 2017. I have now had an opportunity to review them, review my notes and the ruling issued in June 2016 and make the following finding.

[3] In doing so, I have applied the factors stipulated in Rule 57 of the Rules of Civil Procedure. Kheen was awarded payment of $716,979.19 plus interest. The Smiths had claimed in their counterclaim that the Kheen mortgage was invalid and brought a counterclaim against Kheen and their lawyer and other parties. The matter was complex due to the number of parties and the potential legal exposure of various people to the “shotgun” approach taken by the Smiths in their pleadings. In reviewing my notes, there were five counsel present when this voluminous file was argued before me. As I wrote in the reasons released in June 2016, this action and all the associated costs were necessitated by the conduct of the Smiths in trying to do and say anything to avoid their legal obligations under the mortgage.

[4] Initially, Kheen was represented by Gowling Lafleur Henderson LLP who issued the notice of sale and the statement of claim on behalf of Kheen. They charged a block fee of $2,400 plus assessable disbursements for their work which I find to be reasonable and within the reasonable contemplation of the parties.

[5] Mr. Bourassa did most of the litigation work on this file and with respect to the preparation for and argument of this motion. He was assisted by Gillian Silverhart who was called to the Ontario bar in 2009 who has practiced with an emphasis on secured creditor litigation.

[6] I have reviewed the Costs Summary provided and find the hours claimed, the hours claimed and the disbursements claimed all reasonable, necessary and directly related to this litigation. The time for preparation of costs submissions is included in the amount claimed. I have reviewed the disbursements claimed and they are also reasonable and assessable in relation to this litigation.

[7] I award Kheen Investment Ltd. its costs of this matter on a full indemnity basis in the amount of $23,070 inclusive of HST and its disbursements claimed in the amount of $2,359.32 as claimed. These costs are payable jointly and severally by Nadine Theresa Smith and Shane Davidson Smith.

Turnbull, J.

Released: July 7, 2017