1112396 Ontario Limited, 2022 ONSC 5035

COURT FILE NO.: CV-21-673507-0000

DATE: 20220902

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Sacred Heart Seniors Health and Recreation Center Inc., Plaintiff

-and-

1112396 Ontario Limited and SHL Holdings Limited c.o.b. as Midway Industrial Centre, Defendants

BEFORE: Robert Centa J.

COUNSEL: Nanak Singh, non-lawyer seeking to represent the plaintiff

Stephen M. Turk, for the defendants

HEARD: August 3, 2022

ENDORSEMENT

[1] The plaintiff, Sacred Heart Seniors Health and Recreation Center Inc., seeks leave of the court to have a non-lawyer, Nanak Singh, represent the corporation in this litigation.

[2] The defendants, 1112396 Ontario Limited and SHL Holdings Limited c.o.b. as Midway Industrial Centre, oppose the motion. They have also brought a cross-motion seeking an order dismissing the plaintiff’s action because the corporation has not appointed counsel and has failed to pay a costs order of $2,500.

[3] For the reasons that follow, I dismiss the plaintiff’s motion and grant the defendants’ cross-motion.

Facts

[4] The plaintiff is a Canadian corporation, established to provide paid and free day-care services to senior citizens. Its head office is in Mississauga. The defendants own and operate the Midway Industrial Centre, which is a multi-tenanted commercial/industrial property in Mississauga.

[5] In February 2018, the plaintiff leased Unit 12 at the Midland Industrial Centre from the defendants. The plaintiff was to pay a total monthly amount of $10,865.82 for the first two years of the lease term. The defendants terminated the lease on November 18, 2021, for non-payment of rent.

[6] Following the termination of the lease, the plaintiff retained the law firm of Garfinkle Biderman LLP to seek an order in the nature of relief from forfeiture. On December 3, 2021, that firm advised counsel for the defendants that they would no longer be representing the plaintiff.

[7] On December 7, 2021, the plaintiff retained Patrice Cote to represent it. The parties attended civil practice court on December 14, 2021, where Dunphy J. ordered a timetable to have the plaintiff’s motion heard on February 9, 2022. Pending the motion, the defendants agreed not to re-let the premises.

[8] In late December 2021, the plaintiff served its motion record, which included a notice of action. It appears that the statement of claim has not been issued or served.

[9] On January 13, 2022, Mr. Cote brought a motion seeking to be removed as counsel of record for the plaintiff. On January 18, 2022, Mr. Singh swore an affidavit in opposition to Mr. Cote’s motion. On January 19, 2022, Associate Justice Jolley observed that it was now “conceded that the plaintiff will not pay the invoices sent by Mr. Cote and Mr. Cote is not prepared to act without them being paid” and granted the order removing Mr. Cote as counsel of record.

[10] On February 7, 2022, the plaintiff retained Thomas Matthews as counsel. On February 9, 2022, the parties appeared before Dow J. to argue the plaintiff’s motion for relief from forfeiture as scheduled by Dunphy J. The plaintiff requested that its motion be adjourned. Justice Dow adjourned the motion to March 24, 2022, and ordered that the plaintiff pay $2500 in costs thrown away on or before March 9, 2022. Justice Dow ordered that the motion date of March 24, 2022, be peremptory on the plaintiff.

[11] The defendants were now free to re-lease Unit 12, which they did. This rendered moot the plaintiff’s motion seeking relief from forfeiture. On March 2, 2022, Myers J. directed that the hearing scheduled for March 24, 2022, would deal only with the costs of the now abandoned request for relief from forfeiture. Justice Myers’ endorsement recorded the plaintiff’s stated intention to proceed with a claim for damages in its statement of claim.

[12] On March 21, 2022, Mr. Matthews, the plaintiff’s third lawyer, brought a motion seeking to be removed as counsel of record. The motion was returnable on March 24, 2022, which was the same day as the hearing into the costs of the plaintiff’s abandoned request for relief from forfeiture. On that day, the parties appeared before Sanderson J., who granted the order removing Mr. Matthews as solicitor of record and confirmed that the plaintiff would have 60 days to retain a new lawyer. Justice Sanderson also adjourned the motion for costs of the plaintiff’s abandoned request for relief from forfeiture to a new date to be set in civil practice court and ordered the plaintiff to pay $2500 to the defendants within 60 days. That costs order remains unpaid.

[13] On June 1, 2022, counsel for the defendants appeared in civil practice court but no one appeared for the plaintiff. There appears to be a dispute as to why this was the case, but I find that this is irrelevant for the determination of the motions before me. Justice Black directed counsel for the defendants to schedule a case conference regarding the issue of the costs of the abandoned request for relief from forfeiture.

[14] On June 7, 2022, Mr. Singh appeared in civil practice court on behalf of the plaintiff and without notice to the defendants. He asked to schedule a motion for the plaintiff to seek leave to have him represent it. In his endorsement, Myers J. noted that such a motion should be brought before an associate judge and provided directions on how to schedule such a motion.

[15] On June 10, 2022, Black J. presided over a case conference to address all of the outstanding procedural issues in the matter. Justice Black ordered that there should be a two-hour hearing before a judge on July 27, 2022. The hearing would address the plaintiff’s request to be represented by a non-lawyer and the defendants’ concerns about the plaintiff’s apparent non-compliance with a prior costs order and certain court-ordered deadlines. The plaintiff’s motion and the defendants’ cross-motion proceeded before me on August 3, 2022.

The applicable law

[16] Rule 15.01(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that a party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the court.

[17] Rule 15.04(6) requires that a corporation shall, within 30 days after being served with an order removing its lawyer from the record, either appoint a new lawyer of record by serving a notice under rule 15.03(2) or obtain an order granting it leave to be represented by a person other than a lawyer.

[18] Rule 15.04(7) states that if a corporation does not comply with rule 15.04(6), the court may dismiss its proceeding or strike out its defence.

[19] In deciding whether or not to grant leave to the plaintiff to be represented by a non-lawyer, I must consider the interests of justice and rule 1.04, which directs the court to construe the rules so as to ensure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[20] The parties agree that I should consider the non-exhaustive list of factors enumerated by Boswell J. in Extend-A-Call Inc. v. Granovski, 2009 33047 (Ont. S.C.), at para. 19; see also Leisure Farm Construction Limited v. Dalew Farms Inc. et al., 2021 ONSC 105, 14 B.L.R. (6th) 96, at para. 9; Canadian National Futsal Assoc. v. Canada Soccer Assoc., 2021 ONSC 202, at para. 43.

Did the corporation duly authorize the proposed representative to act as its legal representative?

[21] Mr. Singh submits that the plaintiff has authorized him to act as its legal representative. Mr. Singh’s affidavit attaches as an exhibit a resolution of the corporation’s board of directors dated November 19, 2021. The resolution states that “Nanak P. Singh is fully authorized to handle selection and appointment of counsel and all issues pertaining to the said litigation on behalf of [the plaintiff].”

[22] I find that this resolution does not authorize Mr. Singh to act as the plaintiff’s legal representative. It expressly authorizes him to select and retain counsel, but it does not expressly authorize him to represent the plaintiff in court. Acting on the resolution, and consistent with my interpretation of it, Mr. Singh successively retained Garfinkle Biderman, Mr. Cote, and Mr. Matthews to represent the plaintiff. He did not seek to act as the plaintiff’s legal representative when the resolution was passed.

[23] The evidence before me does not contain any subsequent resolution of the plaintiff’s board of directors to indicate that it expanded the scope of its authorization to have Mr. Singh represent its interests in court after the corporation’s three former lawyers got off the record.

[24] I do not think that a resolution authorizing Mr. Singh to “handle the litigation” is sufficiently clear to demonstrate the intention of the plaintiff to have Mr. Singh represent its interests in court. I find this factor weakly favours not granting leave to the plaintiff to be represented by Mr. Singh.

Does the proposed representative have a connection to the corporation?

[25] Mr. Singh is not an officer, director, or shareholder of the company. In his affidavit, Mr. Singh states only that he is the “GM of [the plaintiff]”. On cross-examination, Mr. Singh stated that he has filled the role of general manager since July 2021. However, Mr. Singh also said that he does not have a contract with the plaintiff, that he has not been paid by the plaintiff, is not currently employed, and is not presently in business.

[26] It is not clear what his role as general manager of the plaintiff encompasses, as his affidavit provides no evidence on this point. On cross-examination, he stated that he could not recall the names of the officers of the plaintiff and that he was not sure if the corporation had a minute book or had ever prepared financial statements.

[27] Mr. Singh has a connection to the plaintiff, but this situation is not like cases where the proposed representative of the corporation is its founder, sole shareholder, director, and directing mind: Braysan Properties Inc. v. Muchos, 2022 ONSC 940, at para. 25; Robert M. Simon Construction Ltd. v. Waterloo (Municipality), 2007 18741 (Ont. S.C.), at para. 29. Nevertheless, the board of the plaintiff did authorize Mr. Singh to “handle the litigation.” Although I found that this is not an authorization to represent the plaintiff in court, it suggests that he has a meaningful connection to the corporation, particularly since he stated on cross-examination that he had paid the legal fees for the plaintiff’s previous lawyers.

[28] I find that this factor weakly favours granting the plaintiff leave to be represented by Mr. Singh.

Is the corporation closely held and what is its structure in terms of shareholders, officers and directors? Would the interests of the stakeholders be adequately protected by granting leave?

[29] According to Mr. Singh, Iran Partap is sole shareholder and director of the corporation. Ms. Partap is Mr. Singh’s daughter and currently resides in Ireland. During his cross-examination, Mr. Singh refused to answer questions about the qualifications of the shareholder and director to represent the corporation in court. As noted, Mr. Singh was not able to provide a list of the current officers of the corporation.

[30] It appears that this is a small, closely held corporation. This factor tends to support granting leave for the corporation to be represented by a non-lawyer but also suggests that if there is to be a non-lawyer representative, it should be the director and sole shareholder, not a non-lawyer who lacks those connections to the corporate plaintiff: Braysan Properties, at para. 38.

[31] There is no evidence before me that Mr. Singh has an economic interest in the corporation. In such circumstances, any potential costs orders against the corporation may not discipline his conduct as it would, for example, if he was the sole shareholder. This does not favour granting leave to the plaintiff to have Mr. Singh represent the corporation.

Is the corporation financially capable of retaining counsel?

[32] I accept that promoting access to justice is an important concern. If refusing leave to permit the corporation to be represented by a non-lawyer would effectively bar a corporation from access to justice, this factor should be given considerable weight: Extend-A-Call, at para. 19.

[33] In this case, the plaintiff did not file any evidence or financial statements to demonstrate that it did not have access to funds to pay for counsel. The only evidence before me is Mr. Singh’s uncorroborated assertions that the corporation does not have the money to retain counsel and his submission during oral argument that almost $1 million is invested in the company. Such assertions are insufficient to support a finding that the corporation is unable to afford to retain counsel: Tash Benson Group Inc. v. Back-Bone Gear Inc. 2021 ONSC 7667, at para. 58; DM Urban-Scape Property Developments Ltd. v. Body Blitz Spa East Inc., 2014 ONSC 1616, 39 C.L.R. (4th) 119, at paras. 8 to 11.

[34] On cross-examination, counsel for the defendants asked Mr. Singh about the ability of the plaintiff to pay for counsel. Mr. Singh refused to answer the question because it was, in his view, irrelevant to the motion:

Q. Okay. And you indicated in an e-mail dated December 3rd, 2021, that's signed Mike, that: “Make no mistake that I can arrange sufficient resources to take on this landlord for months or perhaps years.” That's something you said to the landlord?

A. I will not answer anything outside this affidavit. If this cross-examination carries on, I will stop it here. If you have any questions to ask about this affidavit, please do so. Otherwise, I'll ask the reporter please end this thing. I will not answer any questions of a generic nature which are pertaining to the actual main lawsuit which we may or may not commence.

Q. Sir, the financial wherewithal of the company to afford a lawyer is a relevant issue.

A. No, it is not a relevant issue in this motion.

[35] There is a debate in the caselaw regarding how much weight to place on the financial position of a corporation on a such as this: Lamond v. Smith, 2004 6218 (Ont. S.C.), at para. 13; Mirashrafi v. Circuit Center, 2007 CarswellOnt 3839 (S.C.), at para. 14; Extend-A-Call Inc.; De La Rocha v. Markham Endoscopy Diagnostics Inc., 2010 ONSC 5100, 85 C.C.E.L. (3d) 109; and Murphy v. Stefaniak, 2014 ONSC 4396, at para. 10.

[36] However, where the corporation has failed to lead evidence of its finances and has failed to produce any relevant and supporting financial documentation, I may infer that the plaintiff has funds to pay for counsel: Ward v. 1121720 Ontario Ltd., 2015 ONSC 3873, at para. 10; DM Urban-Scape at paras. 7 to 11. In addition, where the corporation has refused to answer questions about its ability to pay for counsel, this factor cannot favour granting leave to the corporation to be represented by a non-lawyer.

Is the proposed representative reasonably capable of comprehending the issues in the litigation and advocating on behalf of the corporation

[37] In assessing whether or not to grant leave to the corporation to be represented by a non-lawyer, the court may consider whether the proposed representative will act in a responsible manner. In making this assessment, the court can consider previous conduct of the proposed representative in the current action or other actions: Extend-A-Call Inc.; DM Urban-Scape; Pitney Bowes of Canada Ltd. v. AA Printing Inc., 2009 CarswellOnt 9594 (S.C.).

[38] This is an important factor. Lawyers and paralegals are bound by their obligations under the Rules of Professional Conduct and the failure of a licensee to abide by those rules may lead to serious professional consequences. A non-licensed agent, like Mr. Singh, is not bound by any professional obligations: Braysan Properties Inc., at para. 38.

[39] I find that Mr. Singh is not an appropriate representative for the corporation for five reasons.

[40] First, Mr. Singh has demonstrated on this motion that he is not capable of protecting the legal interests of the corporation. For example, his declaration on cross-examination that the financial status of the corporation was irrelevant to this motion denied the plaintiff an important factor that could have assisted it on this motion. In addition, his insistence that he did not need to answer questions about documents in the defendants’ responding motion record is wrong at law and harmed the plaintiff’s interests on this motion.

[41] Mr. Singh submits that he is capable of defending the corporation’s interest. In his motion material, he asserted that he was “knowledgeable regarding court proceedings having handled a complete trial.” However, on cross-examination, Mr. Singh refused to produce a copy of the judgment in that trial. This was not an appropriate refusal. I exercise my discretion to draw the inference that the judgment in that case would not have supported Mr. Singh’s representations about his knowledge of court proceedings.

[42] Mr. Singh points to a very recent decision of the Federal Court of Canada: Singh v. Canada (Citizenship and Immigration), 2022 FC 1093. In this case, Mr. Singh filed an application for judicial review on July 12, 2022, in respect of the denial of a Study Permit to Ms. Davneet Kour. He named himself as the applicant and, incorrectly, named the “Minister of Immigration, Refugees and Citizenship” as the respondent. The respondent objected to Mr. Singh bringing the application in his own name because he was not directly interested in the matter. Justice Heneghan agreed that Mr. Singh did not have standing to bring the application in his own name but allowed Mr. Singh to file an amended application for judicial review adding Ms. Kour as an applicant.

[43] The court then considered whether or not to permit Mr. Singh to represent Ms. Kour, who was a minor. The court found that Mr. Singh was prepared to support Ms. Kour by covering her expenses and to provide her with accommodation and granted leave to Mr. Singh to represent Ms. Kour in the application.

[44] While the decision of Heneghan J. provides some support for Mr. Singh’s statements about his abilities, it is not evidence that he is able to represent Ms. Kour’s interests effectively, only that the court granted him leave to do so. Moreover, the defendants’ material included several reported decisions where Mr. Singh has acted on his own behalf or on behalf of family members: Singh v. Canada (Attorney General), 2009 9 (Ont. S.C.); Dua v. Ontario College of Teachers, 2015 ONSC 5969, 341 O.A.C. 1; Singh v. United States (Attorney General), 2010 ONSC 2226. I do not put much weight on those decisions, although it appears that Mr. Singh did not efficiently advance any of these cases.

[45] Second, in May 2022, while he was seeking leave of the court to represent the corporation, he advised counsel for the defendants to stop corresponding with him and that he would not “entertain” emails from opposing counsel until he was granted leave to represent the corporation. This position was unacceptable and only served to delay and complicate the procedural steps in this action. I find that this conduct was evidence that the proposed representative will not act in a responsible manner.

[46] Third, on July 5, 2022, Mr. Singh uploaded to CaseLines a document titled “Reply to Responding and Cross Motion Record.” The document is not a sworn affidavit. It contains a mix of factual assertions and legal submissions. In it, Mr. Singh admits that he had trouble understanding the defendants’ written record. He wrote in para. 11:

Yet [counsel for the defendant] filed a Responding Record of 179 pages, which is so hard for Mr Singh to even understand or reply to. Mr Singh thought of ignoring the Responding Record altogether as it is repetitive and unrelated to the matter at hand.

[47] I have reviewed the responding record. It is clear, readily understandable, and responds directly to the issues raised on this motion.

[48] Fourth, Mr. Singh’s submissions seeking leave to represent the corporation contain abhorrent, outrageous, and entirely unacceptable anti-Semitic statements. To give only one example, Mr. Singh wrote the following:

[J.K.], lead counsel from Jewish law firm Garfinkle Baderman [sic] removed himself on orders of Garfinkle's Board of Directors from the case on their own, in criminal connivance with the Jewish Respondent/Defendant, which attracts an obstruction of justice and perjury charge.

Sadly, this defendant and counsel tried to obstruct justice by colluding with Garfinkle Baderman [sic] law firm and many other Jewish law firms, which the Plaintiff tried to hire as their counsel

[49] Fifth, in his written submissions on this motion, Mr. Singh stated that the judges of the Superior Court of Justice are biased or will otherwise not decide the case according to the relevant facts and law. Many of these allegations also included anti-Semitic rhetoric. Mr. Singh wrote:

Mr Singh stands by what he wrote and the one on one communication should NEVER have been put on public record to draw sympathy from judges and put pressure on other law firms not to represent the Plaintiff against a Jewish landlord.

Yet the courts give deference only to mischievous Jewish landlords like [L.T.] and his cousin counsel [S.T.] to take advantage of antisemitic emotions in Canadian courts with impunity. The anti-Semitic rants have been played over and over and over in this matter by [S.T.] because the Defendants don't have real merit in their defense, and they think that some judge will fall in their trap. This very defendant and his counsel were serving on us uncalled materials and going to CPC court right on the day Ukraine was attacked by Russia. Yet they claim about their suffering in their native country of Ukraine. Plaintiff calls it hypocrisy. If courts allow these defendants to play Jewish cards in front of judges, it will become a big debate in Canada.

This is naked discrimination, by so-called defenders of Jews, and the Canadian courts which can be easily influenced by these games.

[50] During his cross-examination on this motion, Mr. Singh repeated his statement that the courts would not provide a fair hearing to the plaintiff because “the judges are so sympathetic to the issues of Jews” and that judges will “fall for” the defendants’ assertions that Mr. Singh had behaved in an anti-Semitic way.

[51] These statements do not appear to be isolated comments. While he was seeking to represent the corporation, Mr. Singh made similar statements outside of court. For example, on March 3, 2022, Mr. Singh wrote an email to many of the defendants’ tenants that said, in part, “and the [defendants] know that there is every chance their matter would end up with a jewish [sic] judge because Ontario courts are dominated by Jewish judges and lawyers.”

[52] I will not repeat Mr. Singh’s many other anti-Semitic statements in materials filed with the court or that he sent to the defendants and their counsel, but I rely on all of them.

[53] I condemn Mr. Singh’s words unreservedly. They are vile and laced with the most insidious anti-Semitic tropes and stereotypes. It would be unfair and wholly inappropriate to require the defendants to engage further with Mr. Singh as the plaintiff’s representative.

[54] Because Mr. Singh is not a licensee of the Law Society of Ontario, he is immune from regulatory consequences. His conduct, however, amply demonstrates that he is unfit to represent the corporation’s interest in this proceeding. I do not grant leave to the corporation to be represented by Mr. Singh.

Conclusion

[55] For the reasons set out above, I dismiss the plaintiff’s motion for leave to be represented by a non-lawyer.

Defendants’ cross-motion to dismiss the action

[56] On June 24, 2022, the defendants served a notice of cross-motion seeking an order dismissing the plaintiff’s action because the plaintiff failed to appoint counsel or obtain an order permitting it to be represented by a non-lawyer.

[57] As noted above, rule 15.04(6) states that a corporation shall appoint a new lawyer of record or obtain and serve an order granting it leave to be represented by a person other than a lawyer within 30 days after an order removing its former lawyer from the record. Rule 15.04(7) provides that if a corporation fails to comply with rule 15.04(6), the court may dismiss its proceeding.

[58] The court has provided the plaintiff with significant notice of the peril it faced. On March 24, 2022, Sanderson J. granted Mr. Matthews’ motion to remove himself from the record as counsel for the plaintiff. Justice Sanderson gave the plaintiff 60 days to retain a new lawyer or move for leave for permission to be represented by a non-lawyer. On June 7, 2022, Myers J. noted that the 60 days had passed without the plaintiff taking either step and that “the corporate plaintiff remains idle and ignores notices at its peril.”

[59] I considered staying the plaintiff’s action until the corporation appointed counsel or giving the plaintiff one last chance to retain a lawyer. During oral argument, I asked Mr. Singh if the corporation would hire a lawyer if I did not allow him to represent the plaintiff. He stated that no, the plaintiff would not hire a lawyer if I dismissed the motion seeking leave for him to represent it.

[60] I see no purpose in exercising my discretion in favour of giving the corporation one last chance to retain counsel. I dismiss its action.

Defendants’ cross-motion for costs

[61] The defendants brought a cross-motion seeking their costs of the proceeding on a substantial indemnity basis. For the plaintiff’s motion for leave to be represented by a non-lawyer, the defendants seek $23,750 on a partial indemnity basis and $30,400 on a substantial indemnity basis (both numbers inclusive of disbursements and HST). For the balance of the proceeding, the defendants seek $35,682.70 on a partial indemnity basis and $46,304.70 on a substantial indemnity basis.

[62] Fixing costs is a discretionary decision under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. In exercising my discretion, I may consider the result in the proceeding, any offer to settle or to contribute made in writing, and the factors listed in rule 57.01 of the Rules. These factors include the principle of indemnity (rule 57.01(1)(0.a)), the reasonable expectations of the unsuccessful party (rule 57.01(1)(0.b)), the amount claimed and recovered (rule 57.01(1)(a)), and the complexity of the proceeding (rule 57.01(1)(c)).

[63] In exercising my discretion to fix costs, I must consider what is fair and reasonable for the unsuccessful party to pay in this proceeding and balance the compensation of the successful party with the goal of fostering access to justice: Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at paras. 26 and 37.

[64] Under rule 37.09(3), the defendants are entitled to their costs of the plaintiff’s abandoned motion for relief from forfeiture. Rule 37.09(3) does not limit the court’s discretion to award costs on a substantial indemnity basis: Fernbrook Homes (Strachan) Limited v. Tarion Warranty Corporation, 2021 ONSC 8168, at para. 12; Yank v. Mao (1995), 1995 7052 (ON SC), 23 O.R. (3d) 466 (Gen. Div.).

[65] The plaintiff submitted that I should not award costs of either the motion or the proceeding to the defendants. Mr. Singh submitted that a costs award would be Draconian and that costs were not warranted. I disagree. In my view the defendants were entirely successful and are presumptively entitled to a costs award on both the motion and in the proceeding itself.

[66] I have reviewed the bills of costs submitted by the defendants and I find them to be reasonable in the circumstances of this case. Mr. Turk is a 32-year lawyer and the rates claimed for his work reflect his seniority and experience. He spent a reasonable amount of time on the various stages of the proceeding. He was obliged to spend a significant amount of effort to respond to the plaintiff’s first urgent motion, the many attendances before the court, and the delays caused by the plaintiff retaining three sets of counsel over the life of the file. The plaintiff’s conduct made this proceeding significantly more complex and time consuming than necessary.

[67] Costs on a substantial indemnity basis are ordered only in rare and exceptional cases to mark the court’s disapproval of the conduct of the party in the litigation. Generally, courts award substantial indemnity costs only where there has been reprehensible, scandalous, or outrageous conduct by one of the parties: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at p. 134; Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, at para. 40. In Leung v. Leung (1993), 77 B.C.L.R. (2d) 314 (S.C.), the court explained at para. 7 that “reprehensible” is a word of wide meaning. It can include conduct that is scandalous, outrageous, or constitutes misbehaviour, but it can also include milder forms of misconduct deserving of reproof or rebuke.

[68] Courts have imposed substantial indemnity costs where there has been conduct in the litigation described as “racist, misogynistic, and bizarre”: Hamza v. Law Society of Ontario et al, 2021 ONSC 4593, at paras. 6, 7, 9, 14, and 15. The court has also held that a party’s anti-Semitic statements were one of several reasons to deny costs to which the party might otherwise be entitled: Trefler v. Elias, 2020 ONSC 2062, at paras. 20 to 22.

[69] As indicated above, I find Mr. Singh’s poisonous anti-Semitic comments reprehensible. They cannot be tolerated. I exercise my discretion to award costs on a substantial indemnity scale for three reasons.

[70] First, the defendants are clearly entitled to their costs on a partial indemnity scale on the merits of the motion and proceeding without regard to Mr. Singh’s reprehensible conduct. Absent a costs award on a substantial indemnity scale, Mr. Singh’s behaviour would be unsanctioned. Given the gravity of the misconduct, I do not think that is appropriate.

[71] Second, the plaintiff is properly held accountable for Mr. Singh’s conduct. I am mindful of the plaintiff’s separate corporate existence. As I noted above, Mr. Singh is not a shareholder of the corporation, and the economic consequences of a substantial indemnity costs order may not fall on him. The corporation, however, is responsible for authorizing Mr. Singh to handle “all issues pertaining to the said litigation” on its behalf. The plaintiff is accountable for the material filed in court on its behalf.

[72] Third, the plaintiff is responsible for a significant amount of delay in this proceeding. The plaintiff is responsible for several fruitless court attendances and much wasted effort by the defendants. This litigation misconduct might not support an award of substantial indemnity costs on its own. It is, however, a factor that I have considered in exercising my discretion to award costs on a substantial indemnity scale.

[73] The defendants seek substantial indemnity costs in the amount of $76,704.70. Stepping back and looking at the case holistically, I think that a global cost award of $65,000 on a substantial indemnity basis is fair and reasonable in all of the circumstances.

[74] For these reasons, I fix the costs of the motion at $65,000 inclusive of disbursements and Harmonized Sales Tax and order the plaintiff to pay that amount to the defendants within 30 days of the date of this order.

Robert Centa J.

Date: September 2, 2022