COURT FILE NOS.: CV-15-540006-0000; CV-19-00005322-00ES; CV-19-00005323-00ES DATE: 20230718 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Court File No. CV-15-540006-0000 ANIL PERSAUD, in his capacity as Litigation Administrator for the Estate of Rita Persaud Plaintiff/Moving Party – and – CHABIRAJ PERSAUD Defendant/Responding Party
AND BETWEEN: Court File No. CV-19-00005322-00ES MOHINI PERSAUD Applicant/Responding Party – and – THE ESTATE OF RITA PERSAUD Respondent/Moving Party
AND BETWEEN: Court File No. CV-19-00005323-00ES GIRGA GYANCHANDRA PERSAUD Applicant/Responding Party – and – THE ESTATE OF RITA PERSAUD Respondent/Moving Party
Counsel: Hershel Sahian, for the Plaintiff/Moving Party Chabiraj Persaud, self-representing Mohini Persaud, self-represented Hershel Sahian, for Anil Persaud, the Litigation Administrator of the Estate of Rita Persaud Girga Gyanchandra Persaud, Self-represented Hershel Sahian, for Anil Persaud, the Litigation Administrator of the Estate of Rita Persaud
HEARD: April 21, 2023
REASONS FOR JUDGMENT
DIETRICH J.
1Anil Persaud (“Anil”) [1], in his capacity as the Litigation Administrator for the estate of the late Rita Persaud (the “Estate”), brings a motion seeking the following relief:
- An order dismissing the application of Girga Persaud (“Girga”), bearing Court File No. CV-19-00005323-00ES (“Girga’s Application”);
- An order dismissing the application of Mohini Persaud (“Mohini”), bearing Court File No. CV-19-00005322-00ES (“Mohini’s Application”);
- An order declaring Chabiraj Persaud (“Chabiraj”) in contempt of court;
- Costs of the within motions (the “Motions”), costs of the action initiated by the Deceased and continued by Anil, as Litigation Administrator, against Chabiraj (the “Action”) bearing Court File No. CV-15-540006-0000, costs of Girga’s Application, and costs of Mohini’s Application (the “Applications”), all on a substantial indemnity basis; and
- An order directing Dale Streiman LLP (“DSLLP”) to transfer funds in the amount of $122,191.35, representing net proceeds (the “Proceeds”) of sale of the real property, municipally known at 35 Hulmar Drive, in the City of Toronto, Ontario, in which the Estate had an interest (the “Property”), to Anil’s counsel, Wagner Sidlofsky LLP (“WSLLP”), in trust.
2For the reasons that follow, Girga’s Application is dismissed, and Mohini’s Application is dismissed. I do not find Chabiraj to be in contempt of court at this time. An order shall issue directing DSLLP to pay to the Litigation Administrator, or as he shall direct, funds in the amount of $2,726.90 out of the Proceeds, as reimbursement for expenses he incurred on behalf of the Estate. The costs incurred by the Litigation Administrator following the settlement of the Action, the costs of Girga’s Application, the costs of Mohini’s Application, and the within Motions, including this motion, shall be borne by Chabiraj and Mohini equally, payable on a substantial indemnity basis. The determination of the costs of the Action incurred prior to the settlement shall be deferred pending collection of the amount owed by Chabiraj from the Estate or as otherwise directed by this court.
Background Facts
3A brief history of the proceedings will provide context for the relief sought by the moving party, Anil, in his capacity as Litigation Administrator.
4All of the proceedings relate to the Property of the now late Rita Persaud (the “Deceased”) and arise out of the Action she commenced prior to her death, against Chabiraj. In the Action, among other things, the Deceased alleged breach of trust, and sought an order declaring that she was the sole beneficial owner of the Property, the legal title to which was registered in Chabiraj’s name.
5The Deceased died on June 4, 2019, before the Action was tried. She was survived by her six children: Chabiraj, Mohini, Kavita Persaud (“Kavita”), Girga, Chandra Kala Ramkissoon (“Chandra Kala”), and Anil.
6On October 17, 2019, on consent of the parties, Conway J. appointed Anil as the Litigation Administrator to represent the Estate for the purposes of the Action (“Justice Conway’s Order”).
7In that capacity, Anil pursued the Action on behalf of the Deceased. Chabiraj, the defendant, brought a counterclaim against the Litigation Administrator, and commenced a third-party claim against Kavita and Mohini.
8Shortly after Anil’s appointment as Litigation Administrator, on or about November 26, 2019, Mohini brought Mohini’s Application, and Girga brought Girga’s Application. Each named the Estate as the respondent. Their applications are very similar in terms of the relief sought. Included in that relief is an order removing the Litigation Administrator and other orders relating to the administration of the Estate. Anil’s position is that these Applications are derivative of the Action and brought with a view to relitigating the Action.
9On November 15, 2019, during the course of the trial of the Action, the Litigation Administrator and Chabiraj settled the dispute. They entered into a settlement agreement, dated November 15, 2019 (the “Settlement Agreement”). Pursuant to the Settlement Agreement, the Litigation Administrator undertook certain responsibilities regarding the Estate, including the preparation of an inventory and removal of the contents of the Property owned by the Estate, or the beneficiaries of the Estate, by January 15, 2020. Chabiraj, too, undertook certain responsibilities, including arranging for an appraisal and listing of the Property. He also agreed that he would not further encumber the Property (in addition to the mortgage he had already registered on the Property), pledge it as security, or increase the amount owing on any existing charges on the Property as of the date of the Settlement Agreement.
10Pursuant to the Settlement Agreement, the Action and the counterclaim were dismissed without costs, and the third-party claim was discontinued.
11Between November 21, 2019 and November 27, 2019, following the settlement of the Action, Mohini served on the Litigation Administrator six different versions of her application record in support of Mohini’s Application. On December 2, 2019, the Litigation Administrator served and filed his responding application record to Mohini’s Application and to Girga’s Application.
12Between December 4, 2019 and December 5, 2019, Mohini served on Anil four different versions of an “Amended Application Record”. But Mohini never sought or obtained leave to amend her application record. The Litigation Administrator submits that the only valid Notice of Application served on Anil is the version stamped by the court on November 26, 2019.
13In Mohini’s Application, she seeks, among other relief, formal proof of all Wills of the Deceased; an Estate accounting; disclosure of the terms of settlement in the Action; removal of the Litigation Administrator; a declaration that the Deceased’s Last Will and Testament dated April 2, 2019 is invalid; and a preservation order over the Property.
14On December 4, 2019, Girga served on Anil an “Amended Application Record”, though he too never sought or obtained leave to amend his application record. Girga’s Application record, in substance, tracks the application record in Mohini’s Application word for word, other than, somewhat inconsistently, replacing Mohini’s name with Girga’s name. In support of Girga’s Application, he filed a three-paragraph affidavit in which he attested that he was relying on the evidence adduced by Mohini in Mohini’s Application.
15Since serving the Girga Application, nearly three and a half years ago, Girga has not taken a single step to advance it.
16Chabiraj arranged for the sale of the Property on or about February 14, 2020. The Property was sold for $712,000. By order of McEwen J., dated May 27, 2021, the Proceeds were transferred to Hope Law Office to be held in trust, pending further order of the court. Around that time, the Hope Law Office received the Proceeds, which it held in trust.
17The Litigation Administrator observed that the Proceeds were less than expected, and he began to investigate. Kevin Hope, a lawyer at Hope Law Office, and Chabiraj refused to disclose the documentation relating to the sale of the Property and the encumbrances registered against it. Eventually, the Litigation Administrator obtained the disclosure he was seeking, aided by three separate court orders.
18On August 30, 2021, I ordered that the Proceeds be transferred from Hope Law Office to DSLLP, to be held in trust, pending further order of the court. The Proceeds remain at DSLLP.
19The Litigation Administrator discovered that, contrary to the terms of the Settlement Agreement, Chabiraj had further encumbered the Property after the date of the Settlement Agreement and prior to the sale of the Property, and he used the Property to secure a line of credit for himself.
20On October 21, 2021, Anil, as Litigation Administrator, brought a motion to enforce the Settlement Agreement (the “Enforcement Motion”). It was scheduled to be heard on April 21, 2022. The Confirmation Form for the April 21, 2022 motion described the relief sought as: “Motion to dismiss the Applications of Mohini Persaud and Girga Persaud, Motion for costs against Mohini Persaud, Girga Persaud and Chabi Persaud and Motion to transfer the proceeds of sale belonging to the Estate.” Three hours were set aside for a hearing of these matters.
21On April 21, 2022, Mohini sought to adjourn the hearing of the Enforcement Motion. Among her reasons, Mohini submitted that she could not proceed with the Enforcement Motion on that day because she was too unwell to proceed. I found that the evidence that Mohini produced in support of her alleged illness was inadequate. Chabiraj supported Mohini in her requests to delay the hearing of the Enforcement Motion. Due to the delay caused by Mohini, supported by Chabiraj, the motion brought on or about October 12, 2021 was not heard until November 3, 2022.
22Mohini has argued that she was too unwell to proceed with the litigation at other times in proceedings relating to the Estate in this court and in the Divisional Court. Despite specific directions from both such courts regarding the nature and extent of the evidence she would need to adduce to obtain an adjournment for medical reasons, Mohini’s medical evidence in support of her alleged medical condition has been found, by both courts, to be inadequate to support an adjournment.
23On April 21, 2022, Mohini also argued that a stay of the Enforcement Motion was necessary because she required additional production, which she had not been given at earlier hearings. However, Mohini had obtained orders for production from each of McEwen J. on January 11, 2021 (the “January 2021 Production Order”) and Gilmore J. on January 4, 2022. Mohini persistently claims that she did not get the production that she was seeking when McEwen J. granted the January 2021 Production Order. Despite her request, McEwen J. declined to vary the substance of the January 2021 Production Order at a later case conference on February 7, 2022. [2] Mohini did not bring a motion to vary the January 2021 Production Order, though she continually sought to vary it at subsequent case conferences. In the Divisional Court, Mohini was unsuccessful in her attempts to appeal both the January 2021 Production Order and Gilmore J.’s order, among other orders of this court. Justice Corbett, of the Divisional Court, found Mohini’s conduct throughout the appeal process to be vexatious.
24In an effort to advance the litigation arising out of the Action and Mohini’s Application, on April 21, 2022, I heard Mohini’s requests for further production, and on that date, I granted Mohini broadscale production of relevant documents pertaining to the Estate from financial institutions, including banks and insurance companies, and from the real estate brokers involved in the sale of the Property. At her request, Mohini was also granted access to the storage facility where the Deceased’s household goods and personal effects were stored. In my endorsement, I directed Mohini to prepare a draft order, send a copy to the Litigation Administrator for his approval as to form and content, and send it to me for my consideration.
25The draft order that Mohini prepared went well beyond the scope of my endorsement. In her draft, Mohini included relief that she had not been granted, and she attempted to add parties as respondents to Mohini’s Application. The Litigation Administrator refused to approve the draft.
26Mohini did not appeal my endorsement regarding production. Nor did she ever prepare an order limited to the relief granted. There is no evidence that Mohini made any attempt to simply rely on my endorsement to get the production she was seeking or to access the storage locker to inventory the Deceased’s household goods and personal effects. At numerous hearings in this matter, of which, according to counsel to the Litigation Administrator, there have been 30, Mohini has complained about her need for production. However, when it was granted to her, she did not take appropriate steps to obtain it.
27At the April 21, 2022 hearing, I also scheduled Mohini’s Application and Girga’s Application to be heard on August 18, 2022, one after the other, for a full day. At the same hearing, I rescheduled the Enforcement Motion (originally scheduled for April 21, 2022) to be heard on September 22, 2022 instead. I also ordered that cross-examinations, if any, in respect of the three proceedings were to be arranged by the parties to ensure that the hearings would proceed on the scheduled dates. I ordered that the scheduled dates were peremptory on Mohini.
28Neither Mohini nor Girga took any steps to proceed with their respective Applications on August 18, 2022. There is no evidence that either of them conducted any cross-examination. Neither of them has since sought to reschedule their respective Applications.
29The Litigation Administrator submits that Mohini’s action and Girga’s action caused the Enforcement Motion to be adjourned at least five times, with the result that it was not heard until November 3, 2022, more than one year after it was brought. He cites, as an example, the motion Mohini brought on September 14, 2022 requesting an adjournment of all matters relating to the Estate to an unspecified date based on an unproven and inadequately supported health condition. Chabiraj supported Mohini’s requests for adjournments of the Enforcement Motion.
30I heard the Enforcement Motion on November 3, 2022. Notwithstanding that Mohini is not a party to the Action (the third-party claim against her having been discontinued), she attended at the hearing and insisted that she was a party, with a right to make submissions. At the Enforcement Motion, Mohini, again, attempted to intervene and raise the issue of the production she was seeking. The court and the moving party reminded Mohini several times that she was not a party to the Enforcement Motion and had no right to make submissions. Mohini persisted in her attempts to make submissions, causing the proceeding to take more time than intended or needed.
31I released my reasons for judgment on the Enforcement Motion on January 11, 2023. On the same date, I released my reasons for the ruling I had made on December 19, 2022 on the Litigation Administrator’s motion brought in Mohini’s Application. He sought an order declaring Mohini a vexatious litigant, which I granted.
32On the Enforcement Motion, I ruled that Chabiraj breached the Settlement Agreement. I ordered him to pay damages to the Estate in the amount of $220,578.48, plus pre-judgment interest and costs, within 30 days of the judgment (the “Judgment”).
33Mohini appealed my order, in which I declared her to be a vexatious litigant, to the Court of Appeal for Ontario. However, despite clear guidance from the Court of Appeal, Mohini failed to bring her appeal in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). Consequently, that appeal has been abandoned.
34In each of my reasons for judgment on the Enforcement Motion, and the motion for an order declaring Mohini to be a vexatious litigant, I included similar directions to the parties on costs. In my reasons for judgment on the Enforcement Motion, I stated:
The Litigation Administrator has been successful on his motion and is entitled to his costs. The Litigation Administrator has proposed that he make combined written submissions on his costs in this matter and his costs on a related motion for an order declaring Mohini Persaud to be a vexatious litigant in the proceedings relating to the Estate. The issues in the two motions are intertwined. The Litigation Administrator’s proposal is acceptable. My Reasons for Judgment on the motion declaring Mohini to be a vexatious litigant shall be released simultaneously with these Reasons for Judgment.
And in my ruling declaring Mohini a vexatious litigant, I stated that I had sought the availability of the parties for a two-hour hearing on the matter of costs on one of two dates, and that only the Litigation Administrator provided his availability to the court. As such, I scheduled the hearing on the matter of costs for April 21, 2023.
35Chabiraj did not approve the form and content of the draft Judgment. He also did not attend the case conference, initiated by the Litigation Administrator, and held on February 27, 2023, to address the draft Judgment and other issues relating to the Action and the derivative proceedings, Mohini’s Application and Girga’s Application. In my endorsement following that case conference, I gave Chabiraj another opportunity to attend a further case conference on March 15, 2023 to address the form of Judgment. That date was peremptory on Chabiraj. Chabiraj never responded to correspondence regarding the date to settle the Judgment. He did not appear at the case conference.
36Chabiraj did not attend the March 15, 2023 case conference. He made no submissions to the court on costs. He sent several emails to WSLLP indicating that he would not be available until the end of April or May 2023. These emails were contradictory to emails Chabiraj had sent to the Court of Appeal for Ontario indicating that he could be available to attend at the Court of Appeal on March 16, 2023. I signed the Judgment on March 15, 2023.
37At the February 27, 2023 case conference, I extended the time set aside for costs submissions on April 21, 2023 from two hours to three hours to allow for the hearing of the Litigation Administrator’s motion seeking to enforce the Judgment and his motion to transfer the Proceeds from DSLLP to WSLLP.
The Motions Brought by Anil as Litigation Administrator
Should Girga’s Application be dismissed?
38The Litigation Administrator seeks an order dismissing Girga’s Application. I find that this relief should be granted. Girga has been self-representing throughout this matter. He has taken no steps to advance his Application.
39Girga consents to the dismissal of Girga’s Application. He confirms that the relief sought in it is the same as the relief sought in Mohini’s Application. The record also shows that Mohini would sometimes access Girga’s email, pretending to be him, to send messages to other parties relating to the Girga Application and the ongoing litigation. I find it more likely than not that Girga’s Application was brought on Mohini’s urging and it is being orchestrated principally by her.
40On Girga’s consent, Girga’s Application is dismissed.
Should Mohini’s Application be dismissed?
41The Litigation Administrator also seeks an order dismissing Mohini’s Application. I find that this relief should also be granted.
42As a result of my order declaring Mohini a vexatious litigant, Mohini’s Application is stayed per r. 2.1.03(1) of the Rules. Accordingly, Mohini is required to obtain leave of a judge of this court to continue Mohini’s Application. She has not done so.
43Mohini asserts that the Litigation Administrator did not follow the proper procedure for bringing his motion to dismiss Mohini’s Application, and therefore he should not be permitted to proceed. She asserts that the Litigation Administrator ought to have booked a scheduling appointment on notice to her to schedule this specific motion. Instead, he added it to other motions scheduled to be heard, without notice to her. Mohini also submits that she was short served. The latter is not accurate. Mohini was served with the motion record that included this motion within the timeframe prescribed by the Rules.
44I am satisfied that Mohini had adequate notice of the Litigation Administrator’s motion. The Litigation Administrator indicated his intention to bring a motion to dismiss Mohini’s Application and Girga’s Application at least as early as October 6, 2020, when the Litigation Administrator scheduled a case conference to address, among other things, a “dismissal of the Applications”. Again, on April 13, 2023, when the Litigation Administrator scheduled the April 21, 2023 motion, he included in the section of the Confirmation Form covering the relief sought, the dismissal of Mohini’s Application and Girga’s Application.
45Mohini opposes the dismissal of Mohini’s Application, but she has not served or filed any responding material.
46There are several grounds on which to dismiss Mohini’s Application. On April 21, 2022, Mohini’s Application was scheduled to be heard on August 18, 2022. That date was peremptory on Mohini. In my April 21, 2022 endorsement, I specifically directed her to conduct any cross-examinations she intended to conduct in advance of the hearing date. Mohini did nothing in respect of the August 18, 2023 date. She did not appear, she did not seek an adjournment, and she has not sought to reschedule the motion.
47Mohini submits that she could do none of these things because she was ill. As noted, despite clear direction from this court and the Divisional Court regarding the nature and extent of the evidence required to obtain an adjournment on medical grounds, Mohini has not adduced that evidence.
48I would also note that in her November 2019 Notice of Application, Mohini only named the Estate of Rita Persaud as the respondent. The Litigation Administrator was the only representative of the Estate at that time, and she served her Notice of Application on WSLLP, the lawyers representing the Litigation Administrator. I agree that Mohini’s November 26, 2019 application record is the only one that is properly before the court. She did not apply for leave to amend her pleadings. At different times during the proceedings, Mohini has attempted to amend her pleadings, including to add Anil, personally, and Chabiraj as respondents. Rule 26.02 of the Rules permits a party to amend their pleadings without leave before the close of pleadings or at any point thereafter with leave of the court. Pleadings in Mohini’s Application have closed, and Mohini has not applied for or been granted leave to amend her Notice of Application.
49Mohini has served and attempted to file 13 purported Notices of Appeal regarding Orders and decisions in the Action and Mohini’s Application, including the Order declaring her to be a vexatious litigant. In an endorsement of Lauwers, J.A., dated March 15, 2023, he extended the time during which Mohini could file her appeal of the Order declaring her to be a vexatious litigant only. Mohini had until March 17, 2023 to file her Notice of Appeal, but Mohini did not comply with that order. Justice Lauwers also ordered Mohini to perfect her appeal by April 19, 2023, but she did not. Mohini has not perfected her appeal or brought a motion to extend the time to perfect her appeal. In the result, as a vexatious litigant, Mohini cannot take further steps in her Application without leave. Mohini has not sought that leave.
50Forty-one months have passed since Mohini commenced Mohini’s Application. Though she requested numerous case conferences, she has not produced any evidence in support of her Application. As noted, she has not sought leave to amend Mohini’s Application, and she has not conducted any cross-examinations, despite having been ordered to do so prior to the August 18, 2022 hearing date for Mohini’s Application. Further, she has taken no steps to take advantage of the broadscale production rights granted to her on April 21, 2022. I find that there are sufficient grounds to dismiss Mohini’s Application based on delay alone.
51Despite Mohini’s failure to advance Mohini’s Application, she has, in fact, through the Action and the Enforcement Motion, received some of the relief she was seeking.
52In Mohini’s Application, Mohini included in the relief sought an “accounting of the Estate”, disclosure of the settlement in the Action, copies of any orders in the Action, and an order preserving the Property. She also sought the removal of the Litigation Administrator.
53The Litigation Administrator has provided two sets of accounts relating to the Estate as they relate to the Action, and he has disclosed the Settlement Agreement. Copies of all orders in the Action are a matter of public record and available to Mohini. Justice McEwen ordered the Property to be sold, and directed the Proceeds to be held in trust, obviating the need for a preservation order. The Litigation Administrator has not been removed. But pursuant to Justice Conway’s Order, the Litigation Administrator’s role is limited to matters related to the Action.
54In Mohini’s Application, Mohini seeks “formal proof of all wills”, and a declaration that the Last Will and Testament of Rita Persaud dated April 2, 2019 is invalid. These are not matters to which the Litigation Administrator can respond. Justice Conway’s Order does not authorize the Litigation Administrator to administer the Estate or obligate him to prove any will. Many of the allegations in Mohini’s Notice of Application are made against Anil personally or as an attorney for property, but Mohini did not name Anil as a respondent in Mohini’s Application, nor was any order made to add him as such. In the Notice of Application, Mohini also makes allegations against Chabiraj, but he is not a respondent either. And no order has been made adding him as a party to Mohini’s Application.
55I find that Mohini has already received the relief sought in her Notice of Application, the relief has become irrelevant with the passage of time, or it is relief that the Litigation Administrator is not authorized to give or pursue.
56For all of these reasons, Mohini’s Application is dismissed.
Should Chabiraj be found to be in contempt of a court order?
57The Litigation Administrator seeks an order that Chabiraj is in contempt of a court order. Rule 60.11 of the Rules empowers the court to grant a contempt order to enforce compliance with an order of the court, other than the payment of money, or to order a party to abstain from acting. A motion for such an order may be obtained from a judge in the proceeding in which the order to be enforced was made.
58As the moving party, the Litigation Administrator must show that the contemnor breached a clear order in respect of which the contemnor had notice. The moving party has the onus to demonstrate, beyond a reasonable doubt, that the alleged contemnor committed an intentional act or omission in breach of a clear order: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79.
59The Litigation Administrator submits that Chabiraj repeatedly failed to comply with court orders, including an order to produce financial documents related to the sale of the Property, an order to attend for cross-examination by March 25, 2022, and two orders to attend at court, one of which was peremptory on him.
60The Litigation Administrator also submits that Chabiraj evaded service of the motion record in the within proceedings.
61I decline to find Chabiraj in contempt of any court order at this time. I agree that Chabiraj evaded service of the motion record, but I am satisfied that he received the motion record, which was delivered to him at his residence, and delivered to his email address. Chabiraj admitted that he resides at the residence to which the process server delivered the motion record.
62I accept that throughout these proceedings, Chabiraj did breach a number of court orders, but those orders are no longer relevant in the current proceedings.
63Chabiraj is in breach of the Judgment, but that is an order for the payment of money in respect of which the court is not empowered to grant a contempt order to enforce compliance.
Costs of the Motions, the Applications, and the Action
Should the Litigation Administrator be entitled to i) his costs of the Motions and the Applications on a substantial indemnity basis; and ii) reimbursement for the costs of the Action?
64The Litigation Administrator seeks his costs of the Motions, which include the Enforcement Motion, and the motion for an order declaring Mohini a vexatious litigant, the motions to dismiss each of the Mohini Application and the Girga Application, as well as his costs of responding to these Applications, all of which arose out of the Action. He seeks to recover these costs, on a substantial indemnity basis, from Chabiraj and Mohini.
65The Litigation Administrator also seeks his costs of the Action from the Estate. The Settlement Agreement provides that the Action is dismissed without costs. The Litigation Administrator submits that he was appointed, by Justice Conway’s Order, on consent of the parties, to represent the Estate, to continue the Action. Accordingly, he submits that the Estate should pay his costs incurred in the Action.
Costs of the Motions and the Applications
66The Litigation Administrator seeks his costs of the Motions and the Applications on a substantial indemnity basis from Chabiraj and Mohini. Based on the Litigation Administrator’s Bill of Costs, dated April 20, 2023, his substantial indemnity costs are $180,286.95, inclusive of disbursements and HST.
67For the reasons that follow, I find that the Litigation Administrator should be entitled to his costs for the Motions and Applications. Costs on a substantial indemnity basis are appropriate in this case.
68Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
69Rule 57.01 of the Rules lists the factors the court may consider in exercising its discretion to award costs pursuant to s. 131 of the CJA. These factors include: a) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; and b) whether any step in the proceeding was improper, vexatious or unnecessary.
70Rule 57.01(4) states that nothing in r. 57.01(4) or rr. 57.02 to 57.07 affects the authority of the court under s. 131 of the CJA to award all or part of the costs on a substantial indemnity basis.
71Elevated costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties: Young v. Young, [1993] 4 S.C.R. 3. Elevated costs may be awarded where the losing party has engaged in behaviour worthy of chastisement, either in the circumstances giving rise to the cause of action, or in the proceedings: Hunt v. TD Securities Inc. (2003), 66 O.R. (3d) 481 (C.A.), at para. 123. In this era where judges, lawyers and litigants are being urged to use court resources more efficiently, costs orders are routinely being used to shape how litigants approach their use of the justice system: M & M Homes Inc. v. 2088556 Ontario Inc., 2019 ONSC 6400, at para. 15.
72In determining whether a party’s pre-litigation conduct should be considered in awarding elevated costs, the court may consider whether but for a party’s prelitigation conduct, the litigation could have been avoided: Red Pheasant First Nation v. Whitford, 2023 FCA 29, at paras. 52 and 54.
73I am satisfied that Chabiraj’s conduct caused much of the litigation since the Settlement Agreement was executed on November 15, 2019. Put plainly, Chabiraj breached the Settlement Agreement by further encumbering the Property for his own benefit, and redirecting a share of the Proceeds to cover his own debt, to the significant disadvantage of the Estate and his siblings. Such conduct is reprehensible and deserving of the court’s sanction. This conduct forced the Litigation Administrator to bring and pursue the Enforcement Motion, which became both time consuming and costly. As a result of Chabiraj’s conduct, his siblings, the beneficiaries of the Estate, have been denied their inheritance for nearly four years. I find such conduct to be morally reprehensible and deserving of sanction.
74Other examples of Chabiraj’s conduct that are worthy of sanction in these proceedings include the following: Chabiraj refused to produce relevant documentation relating to the Property absent multiple court orders; he repeatedly delayed the hearing of the Enforcement Motion and the issuance of the Judgment; he misled the court as to his availability; and he failed to attend a hearing on a date that was peremptory on him. To add to his misconduct, Chabiraj has failed or refused to pay the damages of $220,578.48, plus interest, owing by him to the Estate.
75For these reasons, the sanction of a costs award, on a substantial indemnity scale, against Chabiraj in respect of the Enforcement Motion, is appropriate in these proceedings.
76The Litigation Administrator also seeks costs, on a substantial indemnity scale, against Mohini in respect of the Applications, including the motion he brought for an order declaring her to be a vexatious litigant. For the reasons that follow, I am satisfied that the sanction of a costs award, on a substantial indemnity scale, against Mohini is also appropriate.
77Substantial indemnity costs, where an individual is declared a vexatious litigant, are appropriate. In Deep v. College of Physicians and Surgeons, 2010 ONSC 5665; aff’d 2011 ONCA 196; leave to appeal to SCC refused [2011] S.C.C.A. No. 152, at para. 5, Mesbur J. awarded such costs where the plaintiff, Dr. Deep, paid no respect to court orders, failed to pay costs orders, and he repeatedly instituted vexatious proceedings, in a vexatious manner.
78Mohini has behaved similarly in these proceedings. She has taken numerous improper and unnecessary steps, including orchestrating Girga’s Application, which, in substance, is the same as Mohini’s Application. Mohini has also failed to comply with court orders, and she has three outstanding costs orders against her arising out of proceedings in each of the Small Claims Court, the Divisional Court, and the Court of Appeal.
79Despite the order declaring her a vexatious litigant and requiring her to obtain leave to pursue any court proceeding, the Litigation Administrator submits that since April 21, 2022 alone, Mohini has scheduled no fewer than 13 proceedings before six different judges in four different courts, including the Court of Appeal for Ontario, the Divisional Court, this court, and the Toronto Small Claims Court. The Litigation Administrator alleges that Mohini has also sent at least 512 emails to counsel, the parties, and the courts. Mohini does not deny this allegation.
80On March 17, 2023, after she had been declared a vexatious litigant, Mohini attempted to serve the Litigation Administrator with 13 purported notices of appeal concerning orders made in these proceedings. These appeals were filed without leave and in contravention of the order of Lauwers J.A., dated March 15, 2023.
81Further, Mohini has inappropriately posted numerous videos and tweets on multiple social media platforms in which she makes serious, disparaging, and derogatory remarks, without proof, about specific lawyers and judges. This conduct has resulted in a criminal charge against her.
82Substantial indemnity costs have been awarded or may be merited where a party engages in certain conduct for which a costs award is a necessary sanction. Such conduct includes the following, most of which Mohini has engaged in during these proceedings: a) a party to the litigation has behaved in an abusive manner, brought proceedings wholly devoid of merit, and unnecessarily runs up the costs of litigation; b) a party’s conduct is vexatious, contumelious or oppressive conduct of the litigation or a step in it; c) a party has made unfounded allegations of improper conduct that were seriously prejudicial to the character and reputation of the defendants; d) there has been malicious, counter-productive conduct; and e) there is striking at the integrity of a professional. See: Osmani v. Universal Structural Restorations Ltd. et al., 2023 ONSC 1041, where Di Luca J. cites, with approval, Glustein J. in Hordo v. Zweig, 2021 ONSC 2244, at para. 19, where Glustein J. cites jurisprudence addressing substantial indemnity costs.
83For these reasons, the sanction of substantial indemnity costs against Mohini is appropriate in these proceedings.
84Regarding the quantum of the substantial indemnity costs, the Litigation Administrator’s Bill of Costs sets out a detailed breakdown of the time spent by his counsel, WSLLP since November 2019, when the Settlement Agreement had been reached and the Applications were commenced.
85The Litigation Administrator was overall successful on the Enforcement Motion, and he proved that Chabiraj misappropriated $220,578.48 of Estate assets. The Litigation Administrator was also successful in obtaining a declaration that Mohini is a vexatious litigant. He also defended Mohini’s Application and Girga’s Application. As noted, the Litigation Administrator seeks $180,286.95 in costs.
86Applying the costs principles set out in r. 57.01 of the Rules, and the factors relevant to this case, I would reduce the Litigation Administrator’s claim for $180,286.95 by deducting some of the fees charged by lawyers other than Hershel Sahian. Mr. Sahian was the lead lawyer on this case, who was assisted from time to time by Peter Neufeld and Jason Moore (student-at-law) of WSLLP. The Bill of Costs includes four hours of attendance at this hearing by each of Mr. Neufeld and Mr. Moore, but Mr. Neufeld did not attend the hearing. Mr. Moore is a student-at-law. While I am confident that the hearing provided a learning opportunity for Mr. Moore, I am not persuaded that his attendance added value to the Litigation Administrator or the Estate. Accordingly, I have deducted the time included for their appearances. I have made a further reduction in the costs for those court attendances at which the Litigation Administrator was represented by two lawyers or one lawyer and one student-at-law, when it was likely that the matters at hand could have been satisfactorily addressed by one counsel. Having applied the said deduction and reduction, I fix the Litigation Administrator’s costs, on a substantial indemnity basis, at $160,000, inclusive of disbursements and HST.
87The Litigation Administrator submits that the allocation of costs as between Chabiraj and Mohini should be apportioned such that Mohini be responsible for 75 per cent of the Litigation Administrator’s costs and Chabiraj ought to be responsible for 25 per cent of the Litigation Administrator’s costs.
88In Mortimer v. Cameron (1994), 17 O.R. (3d) 1 (C.A.), at para. 3, the Court of Appeal for Ontario adopted a costs framework that fixes parties’ liability for costs at a ratio equal to their liability for damages. In BDG Pacific Resources Inc. v. Teck Corp., [1995] B.C.J. No. 1337 (S.C.), at para. 5, the court noted that it “should resist the temptation to embark upon a costly and painful analysis of every issue and sub-issue in a case for the purpose of apportioning costs. The discretion apparently is to be exercised on a broad basis dealing with the major divisions of a case only.”
89The Litigation Administrator submits that the principles in Mortimer and BDG Pacific Resources Inc. should apply in this motion, which involved the Action, Mohini’s Application and Girga’s Application. He asserts that the costs should be affixed against each of Chabiraj and Mohini proportionate to the unnecessary proceedings caused by their respective conduct.
90The Litigation Administrator submits that since the settlement of the Action, Mohini has been responsible, directly, or indirectly, for 30 proceedings, and that ten of the 30 proceedings were necessitated by Chabiraj’s conduct. Accordingly, the Litigation Administrator submits that Mohini should bear 75 per cent of his costs, and Chabiraj should bear 25 per cent of his costs.
91I agree that Chabiraj and Mohini are jointly responsible for the Litigation Administrator’s costs related to the Motions and the Applications. I disagree that Mohini should bear a greater share of the responsibility. I accept that Mohini’s conduct contributed significantly to the number of court attendances, however, it was Chabiraj’s conduct that necessitated the Enforcement Motion, which resulted in the Judgment. Chabiraj alone was responsible for breaching the Settlement Agreement and misappropriating at least $220,578.48 of Estate property; he refused production of documents, and defied court orders compelling his attendance at court. Chabiraj supported Mohini in her requests to delay the Enforcement Motion because it was in Chabiraj’s interest to do so.
92Accordingly, I apportion the costs between Chabiraj and Mohini such that each is responsible for 50 per cent of the Litigation Administrator’s costs of the Motions and Applications. I fix the costs payable by each of Chabiraj and Mohini in this regard, at $80,000, inclusive of HST and disbursements. I make no order of costs against Girga. I am satisfied that he did not act independently in bringing Girga’s Application, and that Girga’s Application was orchestrated by Mohini, such that Girga’s participation was negligible.
Reimbursement for legal fees incurred in the Action
93The Litigation Administrator has not submitted a Bill of Costs, or invoices for legal services, with respect to his costs of the Action. However, as Litigation Administrator, he has prepared a “Statement of Account” for the period of October 17, 2019 to February 24, 2022. In that accounting, he includes as a liability of the Estate, incurred by Anil, on November 29, 2019, on behalf of the Estate, $157,641.51, described as “Legal Fees & and Disbursements – Trial of 35 Hullmar Action”. The accounting also shows additional legal fees having been incurred by Anil “on behalf of Estate” on each of May 17, 2019, June 11, 2019, and July 7, 2019, for a total amount of $30,620.59. The description for these entries is “Legal Fees – 35 Hullmar Dr. Action – Incurred by Anil on behalf of Estate”. However, Anil had not been appointed as the Litigation Administrator when these latter fees were incurred, and the Deceased was still alive on May 17, 2019.
94There is a footnote on page 10 of the Statement of Account stating that legal fees and disbursements incurred by Anil on behalf of the Estate up until November 20, 2019 amount to $166,698.98.
95The Litigation Administrator proposes that the Proceeds from the sale of the Property be transferred to WSLLP “so that he can fulfill his responsibilities as the Estate Litigation Administrator.” I infer from this submission, that the Litigation Administrator would use the remaining Proceeds from the sale of the Property to pay the Estate’s liabilities, including the legal fees owed to WSLLP.
96If the Litigation Administrator is unsuccessful in collecting all the damages and interest owing by Chabiraj on the Judgment, the Estate would likely be insolvent, and the beneficiaries would likely receive nothing. The legal fees incurred by Anil “on behalf of the Estate” both before and after he was appointed as Litigation Administrator exceed the Proceeds held in trust.
97Justice Conway’s Order is silent on how the Litigation Administrator is to be compensated for his services and how he is to be indemnified for expenses, such as legal expenses, which he incurs in pursuing the Action.
98The Litigation Administrator does not appear to have brought an application to pass his accounts.
99At this point in the proceeding, there is insufficient evidence before the court to assess the Litigation Administrator’s right to indemnity from the Estate for the legal fees he incurred on behalf of the Estate in the Action. Therefore, I decline to grant an order permitting the Litigation Administrator, or Anil, personally, to reimbursement from the Estate for legal fees incurred by him in the Action.
Should DSLLP be ordered to transfer the Proceeds to WSLLP?
100The Litigation Administrator seeks an order directing DSLLP to transfer to WSLLP the Proceeds ($122,191.35) it holds in trust, pursuant to the Order of McEwen J. dated January 3, 2020. Justice McEwen’s Order states that no amounts shall be paid from the Proceeds without further order of the court.
101The Litigation Administrator submits that if Mohini’s Application and Girga’s Application, which were brought in an attempt to relitigate the Action and are derivative proceedings to the Action, are dismissed, then there is nothing preventing the transfer of the Proceeds from DSLLP to WSLLP, as counsel to the Litigation Administrator.
102Anil was appointed as the Litigation Administrator pursuant to Justice Conway’s Order to represent the Estate for the purposes of the Action. Anil submits that since that time, no one has applied for a Certificate of Appointment of Estate Trustee with a Will. He further submits that he is, therefore, the only duly appointed representative of the Estate, and that the Proceeds should be transferred to his counsel so that he can complete the administration of the Estate, finalize the Estate accounts, and pass the Estate accounts.
103Anil also submits that, with the assistance of WSLLP, he has undertaken day-to-day Estate administration responsibilities as Litigation Administrator. His evidence is that, in that role, on March 18, 2020, his counsel, WSLLP, served the “Estate’s beneficiaries” with an Estate Accounting by “Estate Trustee and Litigation Administrator Anil Persaud” by email. Based on the email included in the record, these Estate Accounts appear to have been served on Kavita, Chandra Kala, Mohini, and Girga but not Chabiraj. Under the Settlement Agreement, Chabiraj agreed not to challenge the April 2, 2019 will of the Deceased, in which he is not named as a beneficiary. He also agreed not to challenge his standing as a beneficiary of the Estate. The affidavit that accompanied the Estate Accounts sent on March 18, 2020 states: “The information contained in the notice of application to pass accounts with respect to my attorneyship is true.” However, there is no evidence of a notice of application to pass accounts having been prepared or served regarding Anil’s attorneyship, or in his role as “Estate Trustee” or “Litigation Administrator”. The “Statement of Accounts” shows an accounting period of “October 17, 2019 to April 2, 2020” (the “Initial Accounting”), but the accounting entries begin in April 2019. Anil was appointed Litigation Administrator on October 17, 2019, several months after the Deceased’s death. It is unclear whether the accounts are intended to cover Anil’s administration of the Deceased’s property as an attorney for property of the Deceased, as an Estate Trustee, and as a Litigation Administrator.
104On February 25, 2022, WSLLP served each of Chabiraj, Mohini and Girga a second set of accounts, via email (the “Updated Statement of Accounts”). The Updated Statement of Accounts is shown to cover the period of October 17, 2019 to February 24, 2022. It is prepared by “Litigation Administrator for the Estate Anil Persaud.” The updating appears to be the addition of entries for the period of April 3, 2021 to February 24, 2022, as well as some entries, including additional liabilities that were incurred during the period covered by the Initial Accounting. The email reads: “Enclosed is Anil’s updated Estate accounting for the Estate of Rita Persaud, which is being provided to you in accordance with Justice McEwen’s endorsement dated January 11, 2021.” In that Order, McEwen J. ordered Anil to provide an accounting with respect to the Estate within 45 days of receiving documentation referred to in the Order. Based on the email, Kavita and Chandra Kala do not appear to have been served with the Updated Statement of Accounts. However, Mohini sent an email to WSLLP on February 28, 2022 confirming that she had forwarded a copy of the Updated Statement of Accounts to them. She also advised WSLLP that she would be filing an objection to the accounts within the 30-day timeframe. On March 11, 2022, Mohini wrote to WSLLP again to inquire as to whether an application to pass accounts had been filed, and noted that such an application had not been served on her.
105The Litigation Administrator’s Initial Accounting consists of 11 pages, and the Updated Statement of Accounts consists of 14 pages. The latter includes the following: a) a listing of original assets as of October 17, 2019 (being the date Anil was appointed as Litigation Administrator); a statement of “original” liabilities as of October 17, 2019; capital receipts (October 17, 2019 to February 24, 2022); capital disbursements (October 17, 2019 to February 24, 2022); unrealized original assets as of February 24, 2022; investments as of February 24, 2022; liabilities incurred by Anil as Litigation Administrator as of February 24, 2022; requested damages from the Enforcement Motion; reconciliation for funds post Enforcement Motion; and statement of allowable executors’ compensation.
106None of the beneficiaries has filed a formal notice of objection to Anil’s accounting or cross-examined Anil on any affidavit he has sworn in these proceedings. However, as noted, it is not apparent that a notice of application to pass accounts has been brought by the Litigation Administrator.
107Of note in the Initial Accounting, for the purposes of this motion, are what the Litigation Administrator refers to as “Original Liabilities”. All of these liabilities were incurred prior to the appointment of the Litigation Administrator and some of them were incurred prior to the Deceased’s death. The total of these liabilities is $57,367.83. Without proof that the Litigation Administrator incurred and paid these expenses personally, I decline to order a transfer of funds to WSLLP to permit him to be reimbursed. It is unclear why Anil was incurring legal fees relating to the “Estate” prior to the Deceased’s death and prior to his appointment as Litigation Administrator. Also, prior to the Deceased’s death, Anil paid a $10,000 retainer to WSLLP “on behalf of the Estate.” The purpose of this retainer and how it was applied is not shown in Anil’s accounting.
108Similarly, it is unknown whether the “original liabilities”, such as the funeral expenses and utility bills for the Property, are still outstanding, and if not, from whose funds the amounts owing were paid.
109The Initial Accounting also makes reference to two expenses for “Healthcare Records” of the Deceased in the total amount of $103.25. Justice McEwen’s January 13, 2020 Order states that the cost for production of medical records shall be payable by the party requesting them at first instance. Without more information regarding who requested the records referred to in the Initial Accounting, and for what purpose, I cannot assess whether Anil would be entitled to be reimbursed for this expense.
110The Initial Accounting shows a second list of liabilities, referred to as “Liabilities Incurred by Anil Persaud on Behalf of Estate”. These liabilities were incurred in the period from November 11, 2019 to April 2, 2020. These liabilities fall into two categories: moving and storage fees and legal fees and disbursements regarding the Action, the Mohini Application, the Girga Application, and the preparation of accounting.
111Following his appointment as the Litigation Administrator, Anil incurred fees for storage of the Deceased’s household goods and personal effects. Based on the accounting he produced, the storage fees incurred are $2,726.90 (to April 1, 2020). As part of the Settlement Agreement, the Litigation Administrator agreed to prepare an inventory and remove the contents of the Property owned by the Estate or the beneficiaries of the Estate by January 15, 2020 so that the Property could be sold. Based on the record, the beneficiaries did not cooperate in a distribution of the household goods and personal effects. Accordingly, the Litigation Administrator had little choice but to continue to hold the items in storage. It is reasonable that he be reimbursed for these costs he incurred as Litigation Administrator.
112The Updated Statement of Accounts does not include any charges for storage fees beyond those included in the Initial Accounting. If the Litigation Administrator is continuing to incur fees for storage of the Deceased’s household goods and personal effects, he shall confer with the beneficiaries of the Estate and attempt to reach an agreement on a distribution or sale of the household goods and personal effects. If an agreement cannot be reached within 30 days of these Reasons, the Litigation Administrator is hereby authorized to sell the household goods and personal effects, and terminate the contract with the storage facility, or assume personal liability for it. The proceeds of sale, less outstanding storage fee charges, if any, shall be added to the Proceeds held by DSLLP. The Estate shall have no ongoing liability for storage fees related to the Deceased’s household goods and personal effects incurred after 30 days from the date of these Reasons.
113The legal fees and disbursements shown in the Initial Accounting regarding the Action ($157,641.51) have been addressed above. It is unclear whether the legal fees and disbursements shown in the Initial Accounting as having been incurred on January 3, 2020 ($15,170.62) and February 6, 2020 ($11,599.20) with the same description “Legal Fees & Disbursements – Responding to Mohini Persaud and Girga Persaud’s Applications, Preparation of Accounting” are included in whole or in part in the Bill of Costs referred to above.
114Based on the record, apart from the Deceased’s household goods and personal effects of modest value, the Estate assets are proceeds of a CIBC bank account ($19.99), the Proceeds ($122,191.35), and the damages payable by Chabiraj per the Judgment ($220,578.48 plus interest).
115The Litigation Administrator has not yet collected any amount of the Judgment. As part of the Action and the Enforcement Motion, Anil has the ongoing responsibility to collect on the Judgment, and the amount of the Judgment will form part of the Estate for the purposes of paying liabilities and distribution.
116There are insufficient funds in the trust account held by DSLLP to pay Anil’s claim for reimbursement for legal fees and disbursements. Further, in my view, unless and until the damages payable on the Judgment are collected, neither the court nor the beneficiaries of the Estate can properly assess whether the Litigation Administrator should be fully indemnified for the legal fees he incurred in the Action.
117Accordingly, I decline to order that the remaining Proceeds, after reimbursement of the storage fees, be transferred to WSLLP at this time.
118I disagree with Anil’s assertion that he is the only representative of the Estate. Justice Conway’s Order appoints him as Litigation Administrator to represent the Estate “for the purposes of the within action”. Anil’s authority is limited to the Action and related matters, including complying with the Settlement Agreement, enforcing the Settlement Agreement, collecting the Judgment, and defending the derivative Applications. Justice Conway’s Order does not extend to making distributions from the Estate or paying the Estate’s legal fees and other liabilities.
119Unless the children of the Deceased can agree on the appointment of an Estate Trustee, and authorize that Estate Trustee to administer the Estate in accordance with a last will and testament of the Deceased, an application for a Certificate of Appointment of Estate Trustee with a Will will need to be made. If an agreement, in writing, among the Deceased’s children who are beneficiaries of the Estate, cannot be reached regarding the appointment of an Estate Trustee within 30 days of these reasons, Anil shall be permitted to apply for a Certificate of Appointment of Estate Trustee with a Will.
Disposition
120A judgment shall issue including orders:
- dismissing Girga’s Application;
- dismissing Mohini’s Application;
- directing DSLLP to transfer funds in the amount of $2,726.90 to the Litigation Administrator, or as he shall direct, from the Proceeds that it holds in trust, as reimbursement for amounts incurred by the Litigation Administrator on behalf of the Estate for storage fees (as shown in the Updated Accounting);
- directing the Litigation Administrator to: a) arrange, within 30 days of these Reasons, for a distribution of the Deceased’s household goods and personal effects, if any, among the Deceased’s children as they can agree, and failing agreement, to sell such household goods and personal effects in his discretion, and to pay the proceeds, net of outstanding storage fees, if any, to DSLLP to be held in trust together with the Proceeds; and b) within 30 days of these Reasons, to terminate the contract with the storage facility, if any, or assume personal responsibility for it;
- awarding costs of the Motions, costs of Girga’s Application, and costs of Mohini’s Application, but not costs of the Action, on a substantial indemnity basis, of a) $80,000, inclusive of disbursements and HST, to the Litigation Administrator, payable by Chabiraj within 60 days; and b) $80,000, inclusive of disbursements and HST, to the Litigation Administrator, payable by Mohini within 60 days;
- adjourning the matter of the Litigation Administrator’s reimbursement from the Estate for costs of the Action to a date following the collection of the Judgment or as otherwise directed by the court; and
- directing that if, within 30 days of the date of these Reasons, the beneficiaries of the Estate cannot agree, in writing, on the appointment of an Estate Trustee of the Estate with a mandate to administer the Estate in accordance with the Deceased’s will, then Anil shall be permitted to make an application for a Certificate of Appointment of Estate Trustee with a Will, and the consent of any beneficiary of the Estate to his appointment shall not be required.
Dietrich J.
Released: July 18, 2023
Footnotes
1There are several parties in this matter who bear the same surname. For clarity, I will refer to them by their first names. In doing so, I intend no disrespect.
2Justice McEwen amended the preamble to the January 2021 Production Order to state it was made at a case conference. In his endorsement, made on February 7, 2022, he noted that notwithstanding the objections of Mohini, he did not believe that any other amendments were warranted.