SCJ 2018

The successful self-represented plaintiff sought costs for nearly 800 hours spent preparing for and attending a trial where the defendants were found liable for conspiracy, slander, and intentional infliction of emotional distress.

The court applied the test from Fong v. Chan, which requires a self-represented litigant to demonstrate an opportunity cost by foregoing remunerative activity to be awarded costs.

Finding that the plaintiff failed to prove any lost income or opportunity cost, the court denied the claim for time spent and awarded only $1,000 in disbursements.

The plaintiff, Cornerstone Properties Inc., sued Southside Construction Management Ltd. seeking to pierce its corporate veil to satisfy approximately $53,500 in costs orders.

These costs were awarded against 2108790 Ontario Inc. (2108), a company beneficially owned by Southside, in a prior action.

Cornerstone alleged that 2108 was a "mere puppet" created by Southside for a fraudulent or improper purpose to acquire land and avoid liability for costs.

The court applied the Transamerica test for piercing the corporate veil, which requires complete control of the subsidiary and its incorporation for a fraudulent or improper purpose or use as a shell for improper activity.

The court found that 2108's formation to acquire the Urlindale lands was for a lawful purpose, and there was no evidence of fraudulent or improper conduct.

The court also determined it lacked jurisdiction to make a standalone costs order against Southside as a non-party to the original action.

The action was dismissed.

The Plaintiff, having successfully obtained summary judgment for $75,000 due to the Defendants' failure to close a property transaction, sought substantial indemnity costs of $42,272.20.

The court reviewed the Defendants' pleadings and found no unsubstantiated allegations of fraud against the Plaintiff, which was the basis for the substantial indemnity request.

Applying the principles of costs under Rule 57.01(1), the court declined to award substantial indemnity.

Instead, it exercised its discretion to award partial indemnity costs of $28,000, representing approximately two-thirds of the amount claimed, finding the claimed amount to be closer to full recovery rather than substantial indemnity. interesting_citations_summary: > This decision clarifies the threshold for awarding substantial indemnity costs, emphasizing that such an award requires serious and totally unfounded allegations that impugn the honesty, integrity, and reputation of the other side, as distinguished from general questions about the legitimacy of a subsequent sale.

It reinforces that costs awards are discretionary, should be fair, just, and reasonable, and bear a proportionate connection to the result, while also serving to partially indemnify successful litigants and discourage inappropriate conduct.

The court applied Rule 57.01(1) factors in determining the quantum of costs. final_judgement: "The Defendants shall pay to Shamim Rana Khan costs in the total sum of $28,000.00, all-inclusive, within thirty days of the date of this Endorsement." winning_degree_applicant: 2 winning_degree_respondent: 4 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2018 decision_number: 7486 file_number: "3314/17" source: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc7486/2018onsc7486.html" cited_cases: legislation: - title: "Rules of Civil Procedure, R.R.O. 1990, Reg. 194" url: "https://www.ontario.ca/laws/regulation/900194" case_law: - title: "Catalyst Capital Group Inc. v. Moyse, 2018 ONCA 283" url: "https://www.canlii.org/en/on/onca/doc/2018/2018onca283/2018onca283.html" keywords: - Costs - Substantial indemnity - Summary judgment - Rules of Civil Procedure - Rule 57.01(1) - Fraud allegations - Real estate transaction - Failed closing areas_of_law: - Civil Procedure - Costs - Real Estate Law --- # Court File and Parties **COURT FILE NO.:** 3314/17 **DATE:** 2018 12 13 **SUPERIOR COURT OF JUSTICE - ONTARIO** **RE:** Shamim Rana Khan, Plaintiff **AND:** Richard Mwakijale, Pauline Oyugi, Alice Mwakijale and Rosemary Njomvu, Defendants **BEFORE:** Conlan J. **COUNSEL:** Olubunmi Ogunniyi, Counsel for the Plaintiff Julius Omware, Counsel for the Defendants --- # Endorsement on Costs ## I. Introduction [1] The Plaintiff, Shamim Rana Khan (“Khan”), brought a motion for summary judgment against the Defendants, Richard Mwakijale, Pauline Oyugi, Alice Mwakijale, and Rosemary Njomvu. [2] The Defendants had agreed to purchase a property in Toronto from Khan.

There was a signed Agreement of Purchase and Sale (“Agreement”).

The Defendants failed to close the transaction.

Although Khan was able to later sell the property to someone else, she lost $75,000.00 in sale proceeds. [3] The Defendants, in their pleading, did not deny that they failed to close the transaction as per the signed and valid Agreement.

In a nutshell, they blamed the failed transaction on their real estate agent and his employer in, for example, permitting them to waive the financing condition, and the Defendants commenced a Third Party Claim accordingly. [4] Khan’s Motion was heard on October 4, 2018.

Extensive materials had been filed by Khan.

Nothing had been filed by the Defendants.

The Defendants requested yet another adjournment of the Motion, which request was denied for written reasons delivered by this Court on that day.

Khan’s Motion was granted, for oral reasons delivered at Court on October 4th.

Judgment was granted in favour of Khan in the principal amount requested, $75,000.00. [5] This Court ordered that written submissions on costs could be filed, and deadlines were outlined for the parties.

Khan has filed her submissions on costs.

The Defendants have filed nothing. ## II.

Khan’s Position on Costs [6] Khan requests costs on a “substantial indemnity” basis in the total amount of $42,272.20. [7] She focusses on the Defendants’ unsubstantiated allegations of fraud on the part of Khan as the reason for an award of costs on a substantial indemnity scale. ## III.

Basic Legal Principles on Costs [8] I must keep these things in mind in making the decision on costs: (i) the Plaintiff, as the successful party, is presumed to be entitled to some costs; (ii) quantum of costs is largely discretionary; (iii) the objective is to make an award that is fair, just and reasonable in all of the circumstances, including the prudent expectations of the losing side; (iv) costs should generally bear some proportionate connection to the result achieved; (v) cost awards are designed to partially indemnify successful litigants, encourage settlement, and discourage or sanction inappropriate conduct by litigants; and (vi) in determining the quantum of costs, I should consider the various factors outlined in [Rule 57.01(1) of the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194). ## IV.

Decision [9] I have reviewed the Defendants’ pleadings that are contained in the Motion Record that was before this Court on October 4, 2018.

There is nothing contained therein with regard to allegations of fraud against Khan. [10] I do recall the issue of the legitimacy of the ultimate sale of the property by Khan to a third party having been raised by the Defendants during the course of the litigation.

But that does not bring this case within the four corners of the decision relied upon by Khan, [Catalyst Capital Group Inc. v. Moyse, 2018 ONCA 283](/on/onca/2018/283), [2018] O.J. No. 1523 (C.A.). [11] In that case, unlike ours, there were very serious and totally unfounded allegations pleaded and maintained throughout the litigation which sought to impugn the honesty, integrity, and reputation of the other side. [12] Thus, I decline to award to Khan her costs on a substantial indemnity scale. [13] Seeing nothing excessive about the time spent or the hourly rate charged by Khan’s counsel, and seeing nothing unreasonable contained in the Costs Outline filed, this Court exercises its discretion to reduce the award of costs in favour of Khan from the $42,272.20 claimed to an even $28,000.00, all-inclusive. [14] I note from a careful review of the Costs Outline that the $42,272.20 figure, although it is described in Khan’s costs submissions as being recovery on a “substantial indemnity” scale, appears really to be full recovery.

That is further reason to discount the award to something in the neighbourhood of two-thirds recovery, which the $28,000.00 figure represents. [15] This Court orders that the Defendants shall pay to Khan costs in the total sum of $28,000.00, within thirty days of the date of this Endorsement. --- Conlan J. Date: December 13, 2018

This endorsement addresses multiple motions brought by the plaintiffs and defendants by counterclaim against Tanvir Farid.

The plaintiffs sought to continue an interlocutory injunction against Farid for defamatory online postings, amend previous orders, review the execution of an Anton Piller Order (APO), and gain access to seized data.

Additionally, the plaintiffs and other defendants by counterclaim (Maanit Zemel, Hexigent Consulting Inc., Ryan Duquette, and Jason Green) moved to strike Farid's counterclaim.

The court continued the interlocutory injunction until trial, found the APO was properly executed, and granted access to seized data subject to privilege review.

The court denied the plaintiffs' requests to delete a paragraph from a prior order and to issue a mandatory order for Farid to remove defamatory material at the interlocutory stage.

Crucially, Farid's counterclaim, alleging fraud upon the court and improper conduct by the plaintiffs, their counsel, and investigators, was struck in its entirety without leave to amend.

The court found the counterclaim disclosed no reasonable cause of action, was frivolous and vexatious, and was barred by the doctrine of absolute privilege.

Costs were awarded against Farid.

The accused, an Aboriginal first offender, pleaded guilty to three counts of assault and one count of sexual assault against his common-law spouse.

The sentencing judge considered aggravating factors, including the repetitive nature of the domestic violence and sexual assault, and mitigating factors such as the accused's youth, remorse, strong work history, and Gladue factors.

The Crown sought a sentence of two years less a day, while the defence sought 15 months.

The court imposed a total custodial sentence of 20 months, followed by three years of probation with conditions including counselling for domestic violence and sexual offending, a no-contact order, DNA order, Sex Offender Information Registration, restitution, and a weapons prohibition.

The plaintiff commercial landlord sought summary judgment against an indemnifier for unpaid rent and charges under two commercial leases.

The court determined that the landlord's demand for a fee to consent to a change in corporate control, while unreasonable, did not release the indemnifier from their obligations.

The indemnifier was found liable for the tenant's obligations under both leases, subject to specific reductions in the landlord's claimed damages for historic, unbilled expenses.

Andre Hidi appealed his conviction for impaired operation of a motor vehicle.

The trial judge had found him guilty based on an off-duty police officer's observations of "horrible" driving, an odour of alcohol, and the appellant's testimony of alcohol consumption, despite the exclusion of breathalyzer data.

The appellant raised five grounds of appeal, primarily challenging the trial judge's factual findings, credibility assessments, and the application of legal principles regarding evidence inconsistent with impairment.

The Superior Court dismissed the appeal, affirming the trial judge's deference on factual findings and credibility, and clarifying the interpretation of "horrible driving" in conjunction with other evidence to infer impairment, particularly distinguishing and adopting the analysis in *R. v. Kumric* over *R. v. Singh*.

The plaintiff, Hassan Iman Mame, brought a combined tort and accident benefits action following a motor vehicle accident.

After a jury verdict assessing non-pecuniary damages at $45,000, the trial judge conducted a threshold motion under s. 267.5 of the Insurance Act to determine if the plaintiff's injuries met the "permanent serious impairment of an important physical, mental or psychological function" test.

Despite the jury's assessment, the court found that the plaintiff's evidence, even at its highest, did not demonstrate an impairment that substantially interfered with most usual activities of daily living as required by O.Reg. 381/03.

Consequently, the plaintiff was not entitled to non-pecuniary damages, which would have been subject to a statutory deductible.

The plaintiff was awarded $50,000 for pecuniary losses as assessed by the jury, and the accident benefits action against State Farm was dismissed based on the jury's negative answer.

Following a jury conviction for aggravated assault arising from the discharge of a loaded handgun in an apartment, the court was required to resolve disputed sentencing facts.

Applying the post-verdict fact-finding framework, the court rejected the Crown's theory of an intentional shooting and found that the accused produced the gun to scare others and that it discharged unintentionally while being removed from a bag.

The court held that the Bellissimo range for intentional gun violence did not apply and fixed the appropriate range for serious injury caused by the unintentional discharge of an illegally possessed firearm at three to seven years.

Considering catastrophic injuries to the victim, the accused's youth, lack of record, remorse, rehabilitation prospects, collateral immigration consequences, and concurrency with an earlier firearm sentence, the court imposed 21 months' imprisonment after credit, followed by 12 months' probation and ancillary orders.

This endorsement addresses the costs of a motion brought by the Mielczarek parties to consolidate their oppression applications with an action commenced by Daria Sulaiman.

The court had previously ordered the consolidation and directed that the proceedings be tried together.

The Mielczarek parties, who were self-represented, sought costs.

The court found them entitled to costs, noting the respondents' unreasonable conduct in the motion and their efforts to segregate the actions.

The court fixed costs at $7,901.33, including fees and disbursements, after making some deductions for time spent on unrelated matters and for their dual role as witnesses and advocates.

The court emphasized that self-represented litigants are entitled to costs that reflect the objectives of a costs order and are proportional to the interests at stake.

The applicant, L.R., brought a motion for a stay of charges under section 24(1) of the Canadian Charter of Rights and Freedoms, alleging a breach of her right to trial within a reasonable time under section 11(b).

The central issue was whether the 18-month or 30-month presumptive ceiling from R. v. Jordan applied to a case proceeding by direct indictment in Superior Court without a preliminary inquiry.

The applicant argued for the 18-month ceiling, which would make the 26-month delay presumptively unreasonable.

The court reviewed several Ontario, Manitoba, and Alberta Superior Court and appellate decisions, all of which consistently held that the 30-month ceiling applies when a case is going to trial in Superior Court, regardless of whether a preliminary inquiry was held or if a direct indictment was preferred.

The court dismissed the applicant's motion, affirming that the 30-month ceiling was applicable and that the applicant had not demonstrated unreasonable delay falling short of that ceiling, nor had she taken meaningful steps to expedite proceedings.

The court also declined to grant leave for a further s. 11(b) application, emphasizing that all alternate arguments should be brought in one application.

The Respondent, Roger Bryce, brought a motion to change a final order, seeking to reduce child support and the proportionate division of s. 7 expenses.

The Applicant, Sharlene Lawrence-Bryce, in her amended response, sought sole custody of the children, costs, and dismissal of Roger's motion.

The court found a material change in circumstances for both child support (due to Roger's income fluctuations) and custody (due to the parties' chronic inability to cooperate and Roger's vindictive behaviour).

The court adjusted child support retroactively and prospectively, varied s. 7 expenses to a 50/50 split, and awarded Sharlene sole custody, finding it to be in the children's best interests given Roger's conduct.

The plaintiffs, parents of one of the defendants, sought possession of a property, repayment of loans, and arrears of rent from their daughter and son-in-law.

The defendants counterclaimed, alleging the property was held in trust for the daughter and seeking an award for unjust enrichment due to improvements made to the property.

The court found no resulting trust, determined that advances were loans, and established arrears of rent.

While the defendants' unjust enrichment claim for improvements was partially successful, a monetary award was set off against the amounts owed to the plaintiffs.

The plaintiffs were granted judgment for the net amount and vacant possession of the property.

The applicant sought costs fixed at $4,500 for a motion heard on October 22, 2018, where the respondent was the moving party and was substantially unsuccessful.

The court found the applicant was the successful party on the underlying motion and was entitled to costs.

The respondent's arguments for deferring the costs decision, including an alleged apprehension of bias, the assignment of a case management judge, and an attempt to re-argue the motion, were rejected.

Applying the Family Law Rules and appellate guidance on proportionality and reasonableness, the court fixed the applicant's costs at $3,470, at the upper end of the partial recovery range, considering the respondent's errors in the underlying motion.

The defendants brought a motion seeking a further and better affidavit of documents from the plaintiff due to alleged overproduction and lack of categorization, and both parties sought security for costs as none were ordinarily resident in Ontario.

The court ordered the plaintiff to categorize its 24,000 documents and denied the plaintiff's request for increased discovery time.

Both 6Points Food Services Ltd. and Carl's Jr. Restaurants LLC were ordered to post $80,000 each in security for costs, with the court finding Carl's Jr. to be an "initiating plaintiff" despite being a defendant by counterclaim, due to its prior commencement of proceedings in California.

The plaintiff, Oz Merchandising Inc., brought a motion to amend its Statement of Claim for the eighth time, seeking to introduce new allegations of vicarious liability against the Canadian Soccer Association (CSA) and Ontario Soccer Association (OSA) for the acts of the defunct Canadian Professional Soccer League (CPSL), and to increase a claim for lost player transfer fees from $100,000 to $42 million.

The CSA vigorously opposed the amendments.

The court dismissed the motion, finding that the proposed amendments would cause irreparable prejudice to the defendants due to the late stage of the 14-year-old proceeding, were largely statute-barred, involved a novel and insufficiently pleaded duty of care, and introduced untenable collateral issues related to match-fixing.

Minor grammatical edits to the existing pleading were permitted, but the substantive changes to the monetary claims and named players were disallowed.

The children's aid society brought a motion for summary judgment seeking an order for extended society care and no access for the parents of a ten-month-old child.

The mother struggled with long-standing opiate addiction and had recently relapsed, while the father was incarcerated and had no relationship with the child.

The court granted summary judgment for extended society care and no access to the father, finding no genuine issue requiring a trial on those issues.

However, the court found a genuine issue existed regarding the mother's access and ordered a mini-trial to determine that issue.

The offender pleaded guilty to two counts of impaired operation of a motor vehicle causing bodily harm after running a red light and striking another vehicle, causing devastating injuries to two victims.

The offender had a blood-alcohol content more than twice the legal limit and was severely sleep-deprived.

The court sentenced the 72-year-old offender to 3 years in the penitentiary, a 10-year driving prohibition, and a secondary DNA order, emphasizing denunciation and general deterrence.

This endorsement addresses a personal injury action where counsel failed to adhere to agreed-upon timetables for expert reports and did not proceed with a consent motion to transfer the action.

The plaintiff's solicitor also failed to disclose a subsequent accident with overlapping injuries.

The court found counsel's conduct unacceptable and struck the action from the trial list, imposing conditions for its restoration.

The Applicant, Faith Bazos, sought to avoid paying costs to the Respondent, Bell Media Inc., after her application challenging Bell Media's refusal to run her political advertisements was dismissed for lack of jurisdiction.

Bazos argued she was a public interest litigant and should be exempt from costs or pay reduced costs.

The court found that the jurisdictional issue was not novel and did not qualify her as a public interest litigant for the purpose of costs.

The court also found that it was not necessary for her to invoke the Superior Court's jurisdiction instead of the CRTC.

Consequently, the Respondent, as the successful party on the jurisdictional issue, was entitled to partial indemnity costs.

The court fixed costs at $43,117.90, inclusive of fees, disbursements, and HST, finding the amount reasonable given the urgency and complexity of the jurisdictional hearing.