Court File and Parties
NEWMARKET COURT FILE NO.: CV-14-117878-00
DATE: 20180622
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Musharraf Iqbal, Plaintiff/Applicant
AND:
Khawaja Sohail Mansoor and Gold International Inc., Defendants/Respondents
BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN
COUNSEL: Musharraf Iqbal, Self-Represented
U. Bhatti, appearing by agent J. Ziemba, Counsel for the Defendants/Respondents
HEARD: June 21, 2018
ENDORSEMENT
[1] Mr. Iqbal seeks an order for costs with respect to an entire proceeding commenced by him in February 2004. The amount sought is $107,317. For reasons that follow, I dismiss his application for costs.
Background
[2] This matter has been subject to previous proceedings. Sutherland J. referred this matter, on consent, for binding arbitration on June 15, 2016. Arbitration proceeded before The Hon. Don R. Cameron, Q.C. The arbitrator ruled in favour of Mr. Iqbal. In his decision, he invited written submissions as to costs and granted costs in favour of Mr. Iqbal in the amount of $20,000. Mr. Iqbal was represented by counsel at the arbitration hearing.
[3] On February 1, 2018, an appeal of the decision of the arbitrator was heard by me. For reasons issued on February 5, 2018, the respondents’ appeal was dismissed and the parties were invited to make written submissions as to costs.
[4] On March 14, 2018, after receiving costs submissions, I awarded Mr. Iqbal $2,500 with respect to the cost of the motions before me. It is significant to note that in that Costs Decision, I stated at para. 4:
The Arbitrator Donald R. Cameron, Q.C. made an award January 25, 2017. After hearing submissions from Mr. Iqbal, then represented by counsel, made an award of $20,000 for costs. The matter has been referred to arbitration, on consent of all parties, by the order of Justice Sutherland. Justice Sutherland did not reserve the issue of costs.
As I further stated at para. 6:
In my view the issue of costs with respect to any of the previous proceedings was squarely before the Arbitrator. Upon receiving submissions he made a final award of $20,000 to Mr. Iqbal. Based on Mr. Iqbal’s representations leave to appeal the arbitration award was not granted therefore the award was final. I am satisfied that that award fully dealt with any costs considerations up to and including the Arbitrator’s decision.
[5] I pause to note that Mr. Iqbal did not cross-appeal, or seek leave to appeal, the arbitrator’s costs award. It is unclear what costs submissions he made to Mr. Cameron.
[6] After the hearing of the above noted matter, Mr. Iqbal obtained an e-mail from the office of the arbitrator, dated April 3, 2018, which stated in part “I awarded costs of $20,000 on March 29, 2017. I have no further jurisdiction. I cannot award costs for any efforts prior to the arbitration, nor can I award costs for the appeal.”
[7] In my view, Mr. Iqbal seeks to introduce this e-mail as fresh evidence on this motion, evidence that could have been available as part of his earlier costs submissions to me.
Conclusion
[8] I view this appeal as an attempt to appeal a costs award previously made by me. The Courts of Justice Act, s. 132 provides as follows:
A judge shall not sit as a member of a court hearing an appeal from his or her own decision.
No appeal lies without leave of the court to which the appeal is to be taken,
(a) from an order made with the consent of the parties; or
(b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs.
[9] In his previous costs submissions dealt with by me, Mr. Iqbal sought costs of $109,817. In this motion, he seeks virtually the same amount after applying a credit for his previous costs award of $2,500.
[10] I am satisfied that I do not have jurisdiction to deal with costs. The issue has been dealt with by me. Mr. Iqbal’s costs award from the arbitrator was upheld. He did not seek leave to appeal that costs award. Then he received a further costs award with respect to the respondents’ unsuccessful motion to seek leave to appeal the arbitrator’s award.
[11] The plaintiff’s motion is dismissed.
Costs
[12] The responding party was successful on this motion. I am satisfied that costs should follow the event. Counsel for the responding party submits that costs ought to be awarded in the amount of $4,000. I have considered the submissions of counsel. Oral argument was advanced successfully but no materials were prepared. I therefore fix an award of costs of $2,500, all inclusive, payable by the moving party, Mr. Iqbal, payable to the responding parties forthwith.
MULLIGAN J.
Date: June 22, 2018