Court File and Parties

Court File No.: CV-14-4313-00 Date: 2019-03-11

Ontario Superior Court of Justice

Between:

YOUNG-HEW SON and YOUNG SON Plaintiffs

Counsel for Plaintiffs: Sang Joon Bae

- and -

DAUD AHMAD KHAN, ISAM MUNAJJED, RE/MAX REALTY SPECIALISTS INC. BROKERAGE, FAWAD KHAN and ISHAQ AHMAD KHAN Defendants

Counsel for Defendants: Fawad Khan, in person Daud Ahmad Khan, in person

Heard: February 22, 2019

Reasons for Judgment

Fowler Byrne J.

[1] The Plaintiffs have brought a motion pursuant to r. 60.11 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking a finding that the Defendant Fawad Khan is in contempt of the order of Price J., dated December 6, 2016, and of the order of Seppi J., dated June 26, 2018. If a finding of contempt is made, they request that a contempt hearing be scheduled, at which time the penalty for the contempt will be decided.

[2] They also seek a number of ancillary orders, namely: that approval of the form and content of the Order of Kurz J. of January 11, 2018, and approval of form and content of future orders be dispensed with; that they be permitted to serve the Defendants with any future contempt motions by an alternative to personal service; that the Defendants Daud Ahmad Khan, Fawad Khan and Ishaq Ahmad Khan (“the Khan Defendants”) be restrained from bringing any further motions until they pay their outstanding costs orders; and that any motions for leave under r. 38.13 be brought in writing.

[3] The Khan Defendants sought to bring a motion today seeking leave to appeal the decision of Kurz J. dated January 11, 2018, but the motion record was not accepted by the court due to the restrictions set out in the order of Seppi J. of June 26, 2018, as detailed below. Accordingly, that matter is not before me.

Background

[4] The Plaintiffs commenced this claim in 2014 wherein they sought damages arising from the purchase of a home located at 3351 Cedar Creek Drive, Mississauga, Ontario (“the Property”). The Defendant Daud Ahmad Khan was the vendor. Prior to closing, the Plaintiffs discovered mould in the Property. It is alleged that Daud undertook to remediate the problem after closing but failed to do so. The Plaintiffs also alleged that they were advised that the beneficial owner of the Property was actually the Defendant Fawad Khan, who is Daud’s brother. It is further alleged that the proceeds of the sale of the Property were given to the Defendant Ishaq Ahmad Khan, who is Fawad’s son, who used the proceeds to purchase a home registered in his name, located at 11 Sunnyview Road, Brampton (“Sunnyview”). It has been alleged that this was done with the sole purpose of defeating any claim by the Plaintiffs. Several years into the litigation, the Plaintiffs successfully obtained leave to file a certificate of pending litigation (“CPL”) against the title to Sunnyview. Since that time, the actual claim regarding the existence of mould and the failure of the Defendants to remediate the problem has become a distant memory.

[5] The Plaintiffs have led evidence in support of their position that the Khan Defendants have brought numerous motions and applications, for the most part unsuccessful, which has prolonged the litigation and caused the Plaintiffs to incur significant and unnecessary costs. When the aforementioned orders of Price and Seppi J. put limits on the Khan Defendants’ right to continue on this course, the Plaintiffs claim that the Khan Defendants nonetheless persisted in their conduct.

Facts

[6] The Plaintiffs have provided evidence of approximately 20 motions, appeals or applications for judicial review commenced by one or all of the Khan Defendants. It is not clear from the record if all were filed, argued or resolved. Not all of these motions or appeals will be addressed in these reasons. The relevant facts for the purposes of this motion are detailed below.

[7] On September 15, 2016, Bloom J. made an order compelling the Khan Defendants to answer certain undertakings and ordered that Fawad and Daud pay the Plaintiffs their costs of that motion in the sum of $5,000.

[8] On September 30, 2016, Ricchetti J. made an order that the CPL was to remain on title to Sunnyview until further court order. A costs order in relation to this motion followed on November 2, 2016.

[9] On November 18, 2016, a further order was made by Andre J. compelling Fawad and Daud again to answer their undertakings or questions improperly refused, and it was ordered that these Defendants pay a further $2,500 in costs within 60 days.

[10] The Khan Defendants then brought a motion seeking leave to appeal the order of Bloom J. of September 15, 2016. If leave was granted, they sought an order staying Bloom J.’s costs order until which time their appeal was heard. On the same day, the Plaintiffs moved for an order prohibiting the Khan Defendants from bringing any further motions in the proceeding without first obtaining leave of the court.

[11] After considering the parties’ positions, Price J. released a detailed endorsement (the “Price Endorsement”) in which he dismissed the request of the Khan Defendants for leave. He granted the Plaintiffs’ motion and made an order under r. 2.1.02(3) prohibiting the Khan Defendants from bringing any further motions without first obtaining leave. Price J. made it clear that r. 2.1.02(3) only dealt with motions and had no bearing on a party’s ability to commence other proceedings or to launch an appeal.

[12] The order of Price J. of December 6, 2016 (the “Price Order”), states:

1. THIS COURT ORDERS that the Defendants Fawad Khan, Ishaq and Daud Khan may not bring any further motions without obtaining leave from this Court;
2. THIS COURT ORDERS that the motion of the defendants Fawad Kahn, Ishaq Khan and Daud Khan for leave to appeal Justice Bloom’s order dated September 15, 2016 be and is hereby dismissed;
3. THIS COURT ORDERS that the defendants Fawad Kahn, Ishaq Khan and Daud Khan shall pay the plaintiffs the cost of both motions in the sum of $2,611.93 within 30 days hereof.

[13] A small difference in the Price Endorsement should be noted. His endorsement mirrors the Price Order, except for para. 3 which states:

3. The defendants shall seek leave of the court before bringing any future motions. When seeking such leave, the defendants shall file proof that it has paid the costs ordered by Justice Bloom and the costs ordered on this motion.

[14] On November 24, 2016, before Price J. made his order, the Khan Defendants brought a motion in writing to the Divisional Court for leave to appeal the Order of Ricchetti J. of September 30, 2016, regarding the CPL. On December 15, 2016, after the Price Order was made, the Khan Defendants brought a further motion in writing seeking leave to appeal the order of Ricchetti J. of November 2, 2016, as reconsidered on December 6, 2016, granting the Plaintiffs their costs of the CPL motion. Both motions were considered by Trimble J. and subsequently dismissed on January 10, 2017.

[15] On December 20, 2016, Fawad and perhaps also the Khan Defendants (it is not clear from the record) brought a motion before the Divisional Court for leave to appeal the decision of Price J. of December 6, 2016. They then moved before the Ontario Court of Appeal seeking an order that they be granted an extension of time in which to perfect their appeal to the Divisional Court. On March 23, 2017, the Court of Appeal dismissed this motion and ordered that the Khan Defendants pay the sum of $2,500 in costs to the Plaintiffs. In the endorsement, Sharpe J.A. stated that the appeal did not fall within the jurisdiction of the Court of Appeal. The outcome of the motion for leave to appeal to the Divisional Court is unknown.

[16] On January 6, 2017 (incorrectly dated January 6, 2016, in their motion materials), Fawad brought a motion seeking to set aside a Notice of Garnishment dated December 19, 2016, which was obtained by the Plaintiffs in their efforts to enforce the various costs orders. Ishaq appeared to bring the same motion on January 9, 2017. The Plaintiffs also brought a motion at the same time to dismiss the Defendants’ motions and to strike out the statement of defence of the Khan Defendants.

[17] These motions were heard by LeMay J. In his reasons, he correctly identified that the order of Price J. did not prohibit the Khan Defendants from seeking leave to appeal on order, including to the Ontario Court of Appeal. He did, though, identify the motion seeking to set aside the Notice of Garnishment as a motion that was caught by the prohibitions set forth in the Price Order. That being said, LeMay J. indicated that it was clear that the Khan Defendants were actually seeking to stay the enforcement of the Notice of Garnishment pending the outcome of their various appeals and not seeking to set it aside. Accordingly, rather than dismissing the motion and forcing the Khan Defendants to bring the motion again, properly framed, he considered the request of the Khan Defendants to stay enforcement of the Notice of Garnishment. He dismissed both motions on February 8, 2017.

[18] On March 5, 2017, all three of the Khan Defendants brought a motion wherein they sought an order setting aside the order of Trimble J. of January 10, 2017; an order discharging the CPL on title to Sunnyview; an order staying the enforcement of the costs order of Ricchetti J.; an order reducing the costs payable; and an order removing Ishaq from the action. On the evidence before me, it is not clear in what court they proceeded, and it appears that this motion was either abandoned or never filed with the court.

[19] In April 2017, the Plaintiffs brought a motion seeking to strike the Statement of Defence of the Khan Defendants. The motion was eventually heard before Kurz J. on December 17, 2017. On January 11, 2018, Kurz J. released his decision and ordered that the Statement of Defence of the Khan Defendants be struck. He subsequently released a costs decision on February 22, 2018, wherein he ordered the Khan Defendants to pay the Plaintiffs their costs in the sum of $9,617.38. Kurz J. reconsidered his decision on costs after reviewing the submissions of the Khan Defendants on February 26, 2018, but did not vary his order.

[20] On January 24, 2018, each of the three Khan Defendants brought a separate motion in the Ontario Superior Court of Justice seeking leave to appeal the order of Kurz J. dated January 11, 2018. The outcome of this motion is not clear from the record.

[21] On March 17, 2018, Fawad brought a motion in the Divisional Court to seek leave to appeal the costs order of Kurz J. and sought an order that this costs order “be waived due to severe financial hardships and the applicant cannot be axed several times on the same alleged mould case”. The same motion appears to have been brought on March 26, 2018. This motion was heard before Woolcombe J. on April 20, 2018, who denied Fawad’s request for leave to bring their leave application to the Divisional Court. Woolcombe J. ordered that Fawad pay the plaintiff costs in the sum of $800.

[22] On May 4, 2018, Fawad brought an application for judicial review to the Divisional Court wherein he sought leave to appeal the order of Woolcombe J. of April 20, 2018. The outcome of this application is not clear from the evidence before me.

[23] On or about May 10, 2018, Fawad made a motion seeking an order directing the Plaintiffs to provide answers to their undertakings. No leave was sought to bring this motion.

[24] On or about May 22, 2018, Fawad brought a motion seeking an order directing the Plaintiffs and various other non-parties to attend for cross‑examination. No leave was sought for this motion.

[25] On or about May 28, 2018, Fawad brought a further motion whereby he sought “for leave [f]or defendant Fawad Khan to file a Motion for Leave to Appeal the Order directing the Plaintiffs for balance cross-examination of Young Hew Son left from July 18, 2016 and cross-examination of the following within 15-21 days” and then named a number of non-parties who he wished to examine.

[26] In June 2018, the Plaintiffs brought a vexatious litigant application against the Khan Defendants. After hearing submissions, Seppi J. made the following order on June 26, 2018 (the “Seppi Order”):

1. THIS COURT DECLARES that the respondents Daud Ahmad Khan, Fawad Khan and Ishaq Ahmad Kahn (“Khan Respondents”) are vexatious litigants within the meaning of section 140 of the Courts of Justice Act;
2. THIS COURT ORDERS that Khan Respondents may not institute any proceeding in any Court except by leave of a judge of the Superior Court of Justice;
3. THIS COURT ORDERS that the respondent Fawad Khan’s application for judicial review with its Court file no. DC-18-29-00 be and is hereby stayed;
4. THIS COURT ORDERS that all current motions and applications instituted by Khan Respondents be and hereby are all stayed;
5. THIS COURT ORDERS that Registrar of Superior Court of Justice at Brampton and any Ontario Superior Court not to accept any motion record and not to issue any originating process for Khan Respondents;
6. THIS COURT ORDERS that Registrar and Motions Unit in Trial Scheduling Office of Superior Court of Justice at Brampton or at any Ontario Superior Court not to confirm any motion or any application brought by Khan Respondents;
7. THIS COURT ORDERS that the approval as to form and content of this order for the within application be dispensed with;
8. THIS COURT ORDERS that Khan Respondents shall canvas dates with opposing counsel before bringing any motion, application or appeal;
9. THIS COURT ORDERS that Khan Respondents, jointly and severally, pay to the applicant the costs of this application in the sum of $4,800 forthwith.

[27] On July 20, 2018, the Khan Defendants appealed the decision of Seppi J. to the Ontario Court of Appeal. The hearing of that appeal was scheduled for February 8, 2019.

[28] On August 14, 2018, the Plaintiffs moved before Peterson J. for default judgment against the Khan Defendants. They were successful and received a judgment against the Khan Defendants in the sum of $191,450.25 inclusive of damages and costs.

[29] On or about November 19, 2018, the Khan Defendants brought a motion to the Court of Appeal seeking to stay the execution of a writ of seizure and sale obtained by the Plaintiffs pending their appeal of the order of Seppi J. On November 28, 2018, the Court of Appeal granted the stay for 30 days following the hearing of the appeal of the Seppi Order.

[30] On February 8, 2019, the Court of Appeal dismissed the Khan Defendants’ appeal of the Seppi Order: Son v. Khan, 2019 ONCA 100. It further ordered that the Khan Defendants pay the Plaintiffs costs fixed in the sum of $2,800, payable forthwith.

Issues

[31] At this motion, the court must determine the following issues:

1. Is Fawad Khan in contempt of the Price Order or the Seppi Order?
2. Should the Khan Defendants be restrained from bringing any further motions until they pay their outstanding costs orders?
3. Should future motions for contempt be served personally on the Khan Defendants?
4. Should any motions for leave under r.38.13 be brought in writing?
5. Should the requirement that the Khan Defendants approve the form and content of court orders be dispensed with?
6. What costs order should be made?

The Law

A. Contempt

[32] Pursuant to r. 60.11(1) of the Rules of Civil Procedure, a contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.

[33] In order to make a finding of contempt, the moving party must establish the following elements beyond a reasonable doubt: (1) that the order alleged to have been breached states clearly and unequivocally what should and should not be done; (2) that the party who disobeyed the order must have had actual knowledge of it; and (3) that the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17 at para. 32-35, Greenberg v. Nowack, 2016 ONCA 949 at 25-26, leave to appeal to SCC refused, 2017 CarswellOnt 8286.

[34] The contempt power is discretionary and the courts have consistently discouraged its routine use to obtain compliance with court orders. For example, where an alleged contemnor acted in good faith in taking reasonable steps to comply with the order, the judge entertaining a contempt motion generally retains some discretion to decline to make a finding of contempt: Carey at para. 35-37.

[35] The Plaintiffs have put into evidence numerous motions brought by the Khan Defendants in support of their request for a finding of contempt. A careful review of these motions shows that a large number of them were motions seeking either leave to appeal an order, appeal of an order or a request for judicial review of a decision.

[36] The right of the Khan Defendants to bring motions for leave to appeal or to appeal the decisions of this court was already been well explained in the Price Endorsement and the endorsement of LeMay J. of February 8, 2017.

[37] As set out by Price J., his order made under r. 2.1.02 of the Rules of Civil Procedure is narrower in scope than s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Orders made under r. 2.1.02 restrict only motions, not any proceedings, including appeals: Son v. Khan, 2016 ONSC 7621, at para. 32. LeMay J. added in his reasons that motions seeking leave to appeal are not covered by the Price Order: Son v. Khan, 2017 ONSC 962, at paras. 23-27.

[38] Accordingly, it is only motions in which the Khan Defendants seek other relief, unrelated to their right to appeal, and which are brought in this proceeding that will be reviewed to determine if they are in violation of the Price Order. The Seppi Order is much broader in scope and has no such restrictions.

[39] Once all the motions that seek leave to appeal an order or are brought in another court, such as the Divisional Court of the Court of Appeal, are removed from this analysis, it is only the following motions commenced by the Khan Defendants in evidence before me that are possibly grounds for a finding of contempt:

1. Motion brought on January 6, 2017, seeking to set aside a Notice of Garnishment;
2. Motion brought by Fawad on May 10, 2018, seeking an order directing the Plaintiffs to provide answers to their undertakings and their costs;
3. Motion brought by Fawad on May 22, 2018, seeking an order directing the plaintiffs and various other non-parties to attend for cross-examination;
4. Motion brought by Fawad on May 28, 2018, wherein he sought “leave [f]or defendant Fawak Khan to file a Motion for Leave to Appeal the Order directing the Plaintiffs for balance cross-examination of Young Hew Son left from July 18, 2016 and cross-examination of the following within 15-21 days” and then named a number of non-parties to the action.
5. Motion brought in the Court of Appeal on November 19, 2018, seeking a stay of the execution of a writ of seizure and sale obtained by the Plaintiffs, pending their appeal of the Seppi Order.

i. Breach of Price Order

[40] The Price Order is quite clear:

1. THIS COURT ORDERS that the Defendants Fawad Khan, Ishaq and Daud Khan may not bring any further motion without obtaining leave from this Court.

[41] The parties bound by the order are clear and the restricted behaviour is clear. The requirement – seeking leave of the court – is clear. The Defendants have demonstrated their knowledge of the order as they have sought leave in other motions as shown herein. Accordingly, for each motion brought without leave, it must be determined beyond a reasonable doubt, that when the Khan Defendants brought such a motion without seeking leave, that they did so intentionally.

January 6, 2017, Motion

[42] In this motion, the Khan Defendants sought an order setting aside a Notice of Garnishment dated December 19, 2016, and an order removing Ishaq Khan from the case. No leave was sought.

[43] In his reasons, LeMay J. made a determination that leave should have been sought in this matter. He determined, though, that the relief sought was indirectly related to the appeal sought. Rather than make the Khan Defendants refile their motion and seek the appropriate remedy, he proceeded to determine whether leave should be granted. No mention was made of the request to remove Ishaq Khan. It is unclear from the evidence provided if this relief was pursued.

[44] Accordingly, given that LeMay J. actually considered the issue of leave, no finding of contempt can be made.

May 10, 2018, Motion

[45] This motion was brought by Fawad. He sought an order directing the Plaintiffs to provide answers to their undertakings. This motion was brought in the Superior Court in these proceedings and no leave was sought.

[46] It is clear beyond a reasonable doubt that Fawad brought this motion intentionally. He was seeking undertakings in order to advance the litigation. It was brought in the Superior Court. Unfortunately, in failing to seek leave beforehand, he was in contempt of the Price Order.

May 22, 2018, and May 28, 2018, Motions

[47] On May 22, 2018, Fawad sought an order directing the Plaintiffs and various other non-parties to attend for cross-examination. No leave was sought.

[48] On May 28, 2018, Fawad brought another motion in which he sought “leave to file a motion for leave [f]or Fawad to file a motion for leave to appeal the order directing the Plaintiffs for balance cross-examination of Young Hew Son left from July 18, 2016” and also cross-examinations of various other non-parties. Given that he sought the same relief on May 28, 2018, as he did on May 22, 2018, but in the latter he sought leave, it appears that Fawad was trying to bring the May 22, 2018 motion again, properly seeking leave, or perhaps the May 22, 2018, motion was dismissed and he sought leave to appeal that order. The record is not clear. Accordingly, I find that Fawad was attempting in good faith to abide by the Price Order, and therefore is not in contempt.

ii. Breach of Seppi Order

[49] Following the Seppi Order, the restrictions placed on the Khan Defendants were more encompassing. It refers to proceedings brought in any court. While it is clear that motions for leave to appeal the Seppi Order cannot be restricted, most other actions are.

[50] The wording of the Seppi Order is clear. The relevant provisions are as follows:

2. THIS COURT ORDERS that Khan Respondents may not institute any proceeding in any Court except by leave of a judge of the Superior Court of Justice;
3. THIS COURT ORDERS that Khan Respondents shall canvas dates with opposing counsel before bringing any motion, application or appeal[.]

[51] Again, the parties bound by this order are clear. The obligations of and restrictions on the parties are clear. It is also clear from the record that the Khan Defendants are aware of the necessity to seek leave in motions, as they have exhibited their ability to do so on many occasions – in seeking leave to appeal and in their May 28, 2018 motion. This is especially so in light of the declaration that the Khan Defendants are vexatious litigants. Their very failure to seek leave as required by the Price Order was a factor the Plaintiffs relied on when arguing the vexatious litigant motion. Seppi J. stated in her endorsement:

[2] Despite the Order of Price J. of December 6, 2016 that required the defendants to seek leave before bringing any further motions, the defendants have brought about 20 motions as listed at Tab J[.]

[52] Accordingly, it must be determined if the failure to seek leave when instituting any proceedings in the Superior Court, Divisional Court or Court of Appeal was intentional.

November 19, 2018, Motion

[53] In this motion, the Khan Defendants brought a motion to the Court of Appeal, seeking a stay of the writ of seizure and sale until after the hearing of their appeal of the Seppi Order. They also sought six months to obtain alternative financing to pay out any judgments that survive appeal and an order lifting the CPL.

[54] The violation of the Seppi Order has already been determined by the Court of Appeal. In his reasons, Lauwers J.A. stated that while permission from the Superior Court was not required to appeal the order of Seppi J., it was required to bring their motion to stay the writ of seizure and sale: Son v. Khan, 2018 ONCA 984, at para. 6. He cited the decision of Ontario (Attorney General) v. Reyes, 2017 ONCA 613, that made it clear that apart from the argument of the appeal of the vexatious litigant order itself, any motions in that proceeding required leave of Superior Court judge. They did not get that permission.

[55] Despite the Khan Defendants not seeking leave, the court agreed nonetheless to stay the writ of seizure and sale for 30 days after their decision on the appeal was heard. Accordingly, since the Court of Appeal actually addressed the issue of leave and granted it, the Khan Defendants cannot be found in contempt.

vi. Summary

[56] Based on the evidence before me of approximately 20 motions or appeals, the Plaintiffs have only proven beyond a reasonable doubt that the Khan Defendants were in contempt of the Price Order on one occasion, when they failed to seek leave of the court before bringing a motion on May 10, 2018, seeking to compel the Plaintiffs to answer their undertakings.

[57] No contempt has been shown with regards to the Seppi Order.

B. Payment of Costs Orders

[58] As indicated above, the Price Order is slightly different that the Price Endorsement of that same date. In particular, the Price Endorsement adds that when seeking leave to bring a motion, the Khan Defendants must provide proof of payment of the earlier costs orders. The order that was taken out does not contain this requirement.

[59] The law is clear that it is the order that governs, not the reasons or the endorsement: Gustafson v. Johnson, 2016 ONCA 972, at para. 7; and Grand River Enterprises v. Burnham (2005), 197 O.A.C. 168 (C.A.), at para. 10.

[60] Accordingly, when determining whether the Khan Defendants are in contempt, it is the Price Order that will be reviewed, not the Price Endorsement. There is no requirement that the Khan Defendants provide proof of payment of their costs order when seeking leave to bring a motion. In fact, contempt orders cannot be used for failure to pay costs: Forrest v. Lacroix Estate (2000), 48 O.R. (3d) 619 (C.A.).

C. Service by Email

[61] The Plaintiffs sought an order that any subsequent contempt motions against the Khan Defendants be served by email, regular mail and registered mail, instead of by personal service. The Plaintiffs state that their efforts in the past have resulted in considerable expense.

[62] The Khan Defendants are not agreeable. They claim they need the written materials in order to properly prepare, and they do not have the ability to print more than a few pages at their home. They do not agree to service by email for that reason. They do not understand that the Plaintiff agreed to also serve them with hard copies by mail and registered mail.

[63] Pursuant to r. 60.11(2) of the Rules of Civil Procedure, a motion for contempt must be served personally on the person against whom the finding of contempt is sought and not by an alternative to personal service, unless the court orders otherwise.

[64] The Khan Defendants have been in communication with the Plaintiffs’ counsel by email. Accordingly, I am satisfied that anything sent by email to the Khan Defendants will be brought to their attention. Also, given that the Plaintiffs agree to also serve a printed copy by registered mail and ordinary mail, the Khan’s concerns have been met. Accordingly, I am inclined to grant the order requested.

D. Future Applications for Leave

[65] Given that the Khan Defendants have been found to be vexatious litigants, the Khan Defendants may not institute any proceeding in any court except by leave of a judge of the Superior Court of Justice. Section 140(3) of the Courts of Justice Act states that the request for leave must be by way of an application before the Superior Court of Justice. Rule 38.13(2) states that this application shall be heard in writing, without an attendance by the parties, unless the court orders otherwise.

[66] The Plaintiffs sought an order that all applications be made in writing. This is not something that needs to be ordered, as it is already provided for in the rules. Although not formally requested by the Khan Defendants (they served no materials at all on this motion), they have requested the ability to seek leave by way of an oral application. I am not inclined to make this order.

[67] The Khan Defendants maintain that they find it difficult to advance their position in writing, and that they feel they are better oral advocates. That being said, appearances in court are more costly and take more time than written submissions. It is the Khan Defendants’ excessive use of the courtroom, to the financial detriment of the Plaintiffs, which led to the finding that they are vexatious litigants. The Khan Defendants appear to have no difficulty in producing motion records, appeals and applications for judicial review in writing. I see no reason why an application for leave cannot proceed in writing. Accordingly, no order will be made to alter the procedure set forth in the rules.

E. Costs

[68] The Plaintiffs also sought that I again order the Khan Defendants to pay their earlier costs orders. I decline to do so. These orders are already made, and there is no merit in ordering them to be paid again. A motion for contempt is not to be used to enforce the payment of money. The Plaintiffs have other avenues open to them to enforce the earlier costs orders.

[69] With respect to the costs of this motion, the Plaintiffs provided a costs outline. The Khan Defendants did not bring one with them, but were invited to make submissions on costs. Their main submission was that they are not in contempt and, therefore, costs should be paid to them. If costs are awarded against them, the court was asked to take into consideration their limited financial means.

[70] Subject to the Rules of Civil Procedure and any relevant statute, the award of costs is within the discretion of the judge: Courts of Justice Act, s. 131(1). Rule 57.01(1) of the Rules of Civil Procedure outlines the factors that may be considered in addition to the result in the proceeding and any offers to settle.

[71] The fixing of costs is not simply a mechanical exercise. In particular, r. 57.01 makes it clear that the fixing of costs does not begin and end with a calculation of “hours times rates;” that is only one factor to consider. Overall, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), at para. 26.

[72] In making this cost award, I have taken into consideration that the Plaintiffs have a high burden to discharge when alleging contempt.

[73] I have also considered that the Plaintiffs sought multiple findings of contempt, but were only successful in proving one ongoing example of contempt. The allegation that 20 motions were brought in contempt of the Price Order and the Seppi Order is simply not founded in the evidence presented to the court. Price J. and LeMay J. already ruled that the Price Order does not restrict appeals or any motions brought outside of this action. Appeals to the Divisional Court or the Court of Appeal were not restricted by the Price Order. Despite this, the Plaintiffs presented the motions in a collective manner, alleging contempt of the Price Order generally. In addition, the Plaintiffs allege contempt of the Seppi Order when the Court of Appeal had already clearly addressed the issue of leave. Had the allegations of contempt been made only with respect to those motions or proceedings that were clearly in violation of the Price Order, this motion would have been much more concise, and the Khan Defendants would have been able to respond to the motion in a much more effective manner. Despite this challenge, the submissions of the Khan Defendants that there was no contempt and that they only sought to appeal orders was for the most part shown to be accurate.

[74] Given that the Plaintiffs have proven at least one example of ongoing contempt, they are entitled to their costs. Bearing in mind the other considerations listed, the costs payable to the Plaintiffs should be reduced.

Conclusion

[75] Accordingly, I make the following orders:

1. It is declared that the Khan Defendants are in contempt of the order of Price J. dated December 6, 2016, by failing to seek leave of the court before bringing a motion on May 10, 2018, seeking to compel the Plaintiffs to answer their undertakings;
2. The request that the Khan Defendants not be permitted to seek leave until they pay all outstanding costs orders, is dismissed;
3. If the Defendants Daud Ahmad Khan, Fawad Khan or Ishaq Ahmad Khan wish to institute any proceeding in any court in this province, save and except to seek leave to appeal the order of the Court of Appeal of February 8, 2019, they must apply for leave, in advance, by way of an application in writing, before the Superior Court of Justice in accordance with s. 140 of the Courts of Justice Act and s. 38.13 of the Ontario Rules of Civil Procedure;
4. Service of any future motion for contempt that may be brought by the Plaintiffs as against Daud Ahmad Khan, Fawad Khan or Ishaq Ahmad Khan by completion of three methods of service, namely: regular mail, registered mail and email, and email service shall be without the consent of these Defendants. This service shall be considered effective only upon completion of all three methods of service;
5. Email service on Daud Ahmad Khan shall be at daudakhan@hotmail.com;
6. Email service on Fawad Khan shall be at fkhan786@gmail.com;
7. Email service on Ishaq Ahmad Khan shall be at khan.a.ishaq@gmail.com;
8. Daud Ahmad Khan, Fawad Khan and Ishaq Ahmad Khan shall immediately advise Plaintiffs’ counsel should their address or email address change;
9. Approval as to the form and content of this order by Daud Ahmad Khan, Fawad Khan and Ishaq Ahmad Khan is hereby dispensed with;
10. Approval as to the form and content of the orders of Kurz J., dated January 11, 2018, February 22, 2018, and February 26, 2018, by Daud Ahmad Khan, Fawad Khan and Ishaq Ahmad Khan is hereby dispensed with;
11. Approval as to the form and content of any future orders obtained by the Plaintiffs in court file no. CV-14-4313-00 by Daud Ahmad Khan, Fawad Khan and Ishaq Ahmad Khan is hereby dispensed with;
12. Daud Ahmad Khan, Fawad Khan and Ishaq Ahmad Khan shall pay to the Plaintiffs the costs of this motion fixed in the sum of $750, inclusive of fees, disbursements and taxes, payable in 30 days;
13. The issue of the penalty or penalties as against Fawad Khan shall be adjourned to be heard before me, on a date selected by the Plaintiffs, on 14 days’ notice to Daud Ahmad Khan, Fawad Khan and Ishaq Ahmad Khan;
14. The balance of this motion is dismissed.

Fowler Byrne J.

Released: March 11, 2019