Court File and Parties

COURT FILE NO.: CV-15-527149 DATE: 2019-06-27 SUPERIOR COURT OF JUSTICE - ONTARIO

IN THE MATTER OF THE SOLICITORS ACT AND IN THE MATTER OF

T. VIRESH FERNANDO Applicant (Moving Party)

-and-

KUMar Sriskanda Respondent (Responding Party)

BEFORE: Sossin J.

COUNSEL: T. Viresh Fernando, for himself Kumar Sriskanda, for himself

HEARD: June 26, 2019

Endorsement

Overview

[1] Kumar Sriskanda (“Sriskanda”) brings this motion in writing under Rule 59.06 of the Rules of Civil Procedure to vary the Order of the Court issued on a motion brought by T. Viresh Fernando (“Fernando”) relating to directions in their assessment dispute.

[2] The motion for directions in the context of an assessment proceeding between these parties was originally heard by me on April 26, 2019. Fernando, the moving party, appeared at the hearing of the motion, while Sriskanda, the responding party, while duly served with the notice of motion and materials, did not.

[3] I granted the motion for directions.

[4] At the hearing, Fernando also sought costs of $2500.00 on the motion, which were granted. The Order included a factual reference to Sriskanda appearing at the hearing of the motion.

[5] Both parties provided written submissions on Sriskanda’s motion to vary pursuant to Rule 59.06 of the Rules of Civil Procedure.

[6] Sriskanda seeks to vary the Order both to correct the fact of his not attending, and to remove the award of costs.

[7] Sriskanda’s basis for challenging costs is that Fernando’s notice of motion did not indicate he was seeking costs, and therefore, Sriskanda had no notice costs were a possibility. Had he been aware of this possibility, Sriskanda submits, he would have attended to contest this aspect of the motion.

[8] Sriskanda also alleges that Fernando misrepresented the facts relating to the assessment dispute before the Court on the motion.

[9] With respect to his non-attendance, Fernando consents to the change and indicated that the reference to Sriskanda attending was simply an oversight.

[10] With respect to costs, however, Fernando opposed the motion, and argues that he should be entitled to costs whether or not it was sought in his notice of motion. Fernando submits that Sriskanda forfeited the right to contest costs when he chose not to appear at the motion. Fernando also submits that the proper avenue for challenging a costs award is an appeal.

[11] Fernando characterizes Sriskanda’s conduct as frivolous and vexatious.

[12] The discretion to award costs under Rule 57.01 of the Rules of Civil Procedure is broad. For purposes of this motion to vary the costs award, I need not address whether in every case, costs must be included in a notice of motion in order for a party to be eligible to seek costs at the hearing of a motion.

[13] The issue of Fernando’s eligibility for an award of costs notwithstanding that costs were not mentioned in the notice of motion was not addressed at the original hearing of the motion on April 26, 2019.

[14] In these circumstances, and without commenting on the aspersions cast by each party on the other’s conduct in relation to the assessment dispute, I am satisfied that absent any reference to costs in the original notice of motion for directions, costs are not appropriate, and the Order will be varied accordingly.

Conclusion

[15] For these reasons, the motion to vary the Order, dated April 26, 2019, is granted. The modified Order is attached.

Costs

[16] Sriskanda seeks his costs of this motion to vary. In these circumstances, I would not award any costs on this motion.

Sossin J. Released: June 26, 2019