Court File and Parties

COURT FILE NO.: CV-21-00668527

DATE: 2022-02-03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Baljeet Kooner, Avnoor Kooner, Gyan Kaur Kooner in her Capacity as estate trustee for the Estate of Balbir Singh Kooner, Plaintiffs

AND:

Kyeja Mun personally and in her capacity as Estate Trustee for the Estate of Mohammad Adil, Muhammad Salman, Mega Mortgages & Financial Inc., Mortgage Alliance Mega Mortgages, Defendants

BEFORE: C. Gilmore, J.

COUNSEL: Kimberley Gale, Counsel for the Plaintiffs

Warren Rapoport, Counsel for the Defendant Kyeja Mun personally and in her capacity as Estate Trustee for the Estate of Mohammad Adil

Max Skrow and Nadia Chiesa, Counsel for the Defendants Muhammad Salman, Mega Mortgages & Financial Inc., Mortgage Alliance Mega Mortgages.

HEARD: January 18, 2022 and in writing

Costs Endorsement and Corrigendum

Introduction

[1] There are two reasons for providing additional reasons to the Court's decision released on January 21, 2022; 1) Counsel for Ms. Mun had served Offers to Settle on November 20th and November 23rd, 2021. The Court was not aware of these Offers at the time of publishing its decision. As such, counsel were invited to make further submissions on costs on February 2, 2022, and 2) the amount held as security for costs in this matter was only in relation to Ms. Mun and not for the other Defendants. The costs portion of the January 21, 2021 decision directed that $7,500 of the $25,000 held as security for costs be paid to Mr. Salman. This must be corrected as the funds held as security relate only to Ms. Mun.

The Offers to Settle

[2] On November 20, 2021, Mr. Rapaport served an Offer to Settle via email to counsel for Mr. Kooner. Ms. Mun offered to accept $18,000 in costs in exchange for Mr. Kooner withdrawing his motion and cancelling pre-scheduled examinations. The balance of the $25,000 was to be returned to Mr. Kooner ($7,000).

[3] On November 23, 2021 Ms. Mun offered to accept costs to date to be paid from the amount held as security with any remaining amount to be paid the Mr. Kooner. The funds held in Mr. Rapoport's trust account (characterized as substituting for the CPL) to be released to his client. The Offer was open until five minutes before the commencement of the motion.

[4] These Offers were not accepted. Counsel for Ms. Mun has provided an updated costs outline. That outline sets out that Ms. Mun's partial indemnity costs were $28,301.01 and her substantial indemnity costs were $36,355.65. Given that no Offer was accepted, Ms. Mun now seeks $35,000 in costs. This is made up of partial indemnity costs to the date of the November 23rd Offer and full indemnity costs thereafter.

[5] Mr. Skrow on behalf of the remaining Respondents did not seek any additional amounts from the Costs Outline submitted at the conclusion of the motion.

Security for Costs

[6] Paragraph 3 of the Order of Justice Cavanaugh dated October 12, 2021 sets out as follows:

THIS COURT ORDERS that the amount of $25,000.00 paid by Baljeet Kooner to Gale Law in Trust on October 4, 2021, remain held in a separate interest bearing trust account, annexed hereto as Schedule "B", as security for costs for the within motion pending further court order or agreement of the parties.

[7] While not entirely clear on its face that the funds held as security for costs were intended solely for the benefit of Ms. Mun, counsel agree that this is the case. As such, paragraph 51 of my January 21, 2022 endorsement must be corrected as it sets out a division of the funds held as security with $17,500 going to Ms. Mun and $7,500 to Mr. Salman.

Analysis and Ruling

[8] While neither of Ms. Mun's offers are technically Rule 49 Offers they can and will be considered by this Court. If either of the Offers had been accepted, Mr. Kooner would be in a better position than he is now in terms of his liability for costs.

[9] The law and test with respect to either granting or discharging a CPL is clear and undisputed. What made this case more challenging was the somewhat convoluted set of background facts. There were also two days of cross-examinations and experts' reports which added to the overall costs.

[10] The Court did not rely on the experts' reports in deciding not to grant a CPL as they were contradictory and there was no ability to test the conclusions in those reports.

[11] The Court did rely to some extent on the cross-examination transcripts to assist in unraveling the facts and the parties' evidence.

[12] However, notwithstanding the factual matrix, the experts' reports, the outstanding Offers and the time and expense of cross-examinations, the costs must still be proportional. $35,000 for a 1.5 hour motion with respect to a CPL is not proportional. I previously ordered Mr. Kooner to pay $17,500 in costs without the benefit of reviewing the Offers to Settle. That amount must be increased somewhat to account for Ms. Mun's rebuffed attempts to settle. However, it is not be doubled as suggested by Ms. Mun's counsel.

[13] A reasonable and proportionate amount of costs in all of the circumstances is $22,500. This amount is to be paid from the amount held as security for costs. The balance is to be returned to Mr. Kooner.

[14] Mr. Skrow's client to receive $7,500 in costs. Presumably that will be partially paid by what is left from the funds held as security for costs but I will not order that be done given the terms of Justice Cavanaugh's Order.

[15] This endorsement is intended to entirely replace paragraphs 47-51 of my endorsement released on January 21, 2022.

C. Gilmore, J.

Date: February 3, 2022