COURT FILE NO.: FS-14-82146
DATE: 20181109
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Muhammad Aslam, Applicant
AND:
Munira Aslam, Respondent
BEFORE: Barnes J.
COUNSEL: David A. Weisman, for the Applicant
Shahida Faisal, for the Respondent
Michael Figol, for Mr. and Mrs. Rana (non-parties)
HEARD: In Writing
COSTS ENDORSEMENT
[1] The Applicant (Muhammad Aslam) and the Respondent (Munira Aslam) are separated. They have two children and are embroiled in legal disputes under applicable family law legislation.
[2] Ms. Aslam was successful in a motion seeking to question Maqsood Ahmad Rana and his spouse, Sajida Majeed Rana. Mr. and Mrs. Rana are not parties to the Aslam’s family law application (dispute).
[3] Ms. Aslam sought questioning on the basis of allegations that Mr. Aslam is the beneficial owner of property with municipal address 199 Hillcrest Avenue, Unit 10, Mississauga, Ontario (the property). Mr. Rana holds title to the property. Ms. Aslam alleges that Mr. Aslam provided the down payment for the property; paid taxes for the property and a lease agreement lists Mr. Aslam as a tenant of Mrs. Rana at the property.
[4] I permitted oral questioning of Mr. Rana and questioning of Mrs. Rana in writing. Mr. Aslam took no position at the motion for questioning. Mr. Rana and Mrs. Rana were represented by counsel. They opposed the motion for questioning. Ms. Aslam was successful. She seeks costs against the non-parties, Mr. and Mrs. Rana. The Ranas are opposed on the basis that no costs can be awarded against them because they are non-parties.
[5] It is trite law that there is no provision in the Family Law Rules, the Rules of Civil Procedure or the Courts of Justice Act which permit a cost order against non-parties. Cost orders may be made against non-parties only in unusual circumstances. For example, where there is fraud, to prevent an abuse of process, where the non-party is the real party etc.: St. Jean v. St. Jean 2003 2249 (ON SC), [2003] O.J. No. 1845, at para. 32.
[6] In Civil cases cost awards may be awarded against a non-party in circumstances where: “(1) the non-party had standing to bring the proceeding; (2) the named plaintiff or applicant is not the true claimant; and (3) the plaintiff or applicant was a “man of straw” put forward to protect the non-party from liability for costs: Television Real Estate Ltd. v. Rogers Cable T.V. Ltd., 1997 999 (ON CA), [1997] O.J. No. 1944; Morden and Perell, The Law of Civil Procedure in Ontario, 2nd edition, page 784-5.
[7] Ms. Aslam alleges fraud to which she says Mr. Aslam, Mr. Rana and Mrs. Rana are parties. These allegations have not been substantiated. Thus, it remains an open question as to whether Mr. Rana and Mrs. Rana have engaged in fraudulent activity with Mr. Aslam, such as to make them susceptible to a cost award despite their status as non-parties.
[8] Therefore, the issue of costs on this motion is reserved to the trial judge or any judge who ultimately resolves the issue of whether the Ranas and Mr. Aslam have participated in the fraudulent scheme described.
Barnes J.
Date: November 9, 2018
COURT FILE NO.: FS-14-82146
DATE: 20181109
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Muhammad Aslam, Applicant
AND:
Munira Aslam, Respondent
BEFORE: BARNES J.
COUNSEL: David A. Weisman, for the Applicant
Shahida Faisal, for the Respondent
COSTS ENDORSEMENT
Barnes J.
Date: November 9, 2018