Court File and Parties

COURT FILE NO.: CV-22-79624 DATE: 20231019

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Muhammad Iqbal Khan, Applicant A N D: Muhammad Ali Khan, in his personal capacity and in his capacity as Estate Trustee of the late Shahida Khan, deceased

BEFORE: Justice L. Sheard

COUNSEL: Muhammad Iqbal Khan, self-represented Lauren Grimaldi, for the Respondent

HEARD: October 10, 2023, via video conference

E N D O R S E M E N T

[1] There were two matters before me today:

i) a long motion brought by the respondent for an order that the applicant post security for the costs of this Application and for an order converting the Application to an action; and

ii) a partial return of the Application, namely, the applicant’s request for further injunctive relief [^1], including an order that the assets of the Estate of the late Shahida Khan (respectively the “Estate”, and the “Deceased”) or any assets that can be traced from property originally or previously owned by the Deceased not be distributed or dissipated; an order that real property at 147 West 4th Street, Hamilton, Ontario L9C 3N1 (the “House”) not be encumbered, sold, transferred, disposed of, demolished or renovated; that all “moveable assets” belonging to the Deceased – jewellery, and cash, etc., be secured and listed; an order that the respondent prepare and file Estate accounts; and an order prohibiting payment of the respondent’s legal fees from the Estate.

[2] At the outset of the hearing, counsel for the respondent also asked this court to fix the costs of the hearing of the motion heard by me on May 16, 2023.

Overview

[3] The applicant, Muhammad Iqbal Khan [^2] (“Iqbal”), is the former spouse of the Deceased, who died on July 6, 2020, without a will. Iqbal asserts that he and the Deceased were married spouses until her death and the parents of three children: the respondent, Muhammad Ali Khan (“Ali”), Muhammad Umar Khan (“Umar”), and Marryiam Khan (“Marryiam”).

[4] The Deceased and Iqbal came to Canada with their three children in 2006. In 2012, Iqbal returned to Pakistan, leaving the Deceased and the three children in Canada. Iqbal did not return to live with the Deceased and, it would appear, the last time he set foot in Canada was in 2015 or, possibly, 2016.

[5] A Certificate of Appointment of Estate Trustee Without a Will in respect of the Estate was issued to Ali on February 17, 2022 (the “Certificate”). In his Application for the Certificate, Ali stated that the Deceased and Iqbal had been separated since 2016; Iqbal lives in Pakistan; the Deceased died in Canada, leaving Canadian assets, including real property; and that the Deceased’s three children live in Canada. Iqbal did not consent to Ali’s appointment as Estate trustee.

[6] Iqbal brought this Application in September 2022, claiming, among other things, the return and revocation of the Certificate, and a finding that he is the surviving spouse of the Deceased and that, as such, is entitled to the spousal preferential share of the Estate pursuant to s. 45 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”) [^3] and to a distributive share of the Estate, pursuant to s. 46 of the SLRA. A “spouse” is defined to mean a married spouse: s. 1, SLRA.

[7] In the Application, Iqbal also seeks payment to him of the proceeds of certain policies of life insurance on the basis that he was the designated beneficiary and/or the surviving spouse, and legally entitled to the proceeds.

[8] In response to Iqbal’s Application, Ali asserts that Iqbal and the Deceased were divorced at the time of her death. Ali presents evidence to support that assertion, such as the emails sent by Iqbal to the children, in which he told them that he and the Deceased were divorced, and documents Ali obtained from Pakistan, in which Iqbal is described as a “Divorcee” [sic] on his Marriage Certificate dated February 25, 2017, certifying his marriage to Nadia Parveen, years prior to the death of the Deceased.

[9] Ali also produces other official documents that he obtained from Pakistan that show that Iqbal lied - saying, for example, that the Deceased had no children and that he, Iqbal, was the Deceased’s sole heir - which Iqbal then used to obtain and keep for himself, assets located in Pakistan and belonging to the Deceased. One such asset was a parcel of land that Iqbal subsequently sold. Ali’s evidence is that it had an approximate value of $63,000. Ali says that he has brought legal proceedings in Pakistan to challenge and reverse the transfer to Iqbal of assets owned by the Deceased.

Key Issues to be Decided:

[10] On the Application, the key issues to be decided are:

1. Can Iqbal establish that he is the Deceased’s surviving [married] spouse for the purposes of the intestacy provisions (ss. 44, 45 and 46) of the SLRA?

[11] As per the SLRA, if Iqbal and the Deceased were divorced at the time of her death, Iqbal would have no entitlement to any share of the Estate on an intestacy.

2. Can Iqbal establish that he is a “qualifying spouse” as defined under the provisions of the Healthcare of Ontario Pension Plan (respectively “HOOPP” and the “Plan”), such that he is entitled to receive the Deceased’s survivor’s benefit?

[12] As per the affidavit evidence of Louise Long of HOOPP, under the Plan, a “qualifying spouse” is defined as a person who is a [married] spouse of a member (it is acknowledged that the Deceased was a Plan member) and who was not living separate and apart from the Plan member. Therefore, to be entitled to the spousal survivor benefit under the Plan, Iqbal must establish not only that he was married to the Deceased but, also, that he and the Deceased were not separated at the time of her death.

[13] Establishing that he and the Deceased were not living separate and apart as the time of her death may pose a challenge to Iqbal in the face of the evidence of the three children that Iqbal moved back to Pakistan in 2012; Iqbal’s passport that shows that Iqbal’s last visit to Canada was in 2015; and, that in 2017, the Deceased commenced a Divorce Application in Hamilton, Ontario, in which, she stated that she and Iqbal had been living separate and apart since July 2015.

3. Are there claims against the Estate and/or non-Estate assets (for example, proceeds of life insurance on which Iqbal is a named beneficiary) that may need to be determined before the Estate assets can be distributed?

[14] In his Application, Iqbal acknowledges that there a concern respecting Marryiam’s need for support. There is some evidence before the court that Marryiam suffers from mental illness and, in oral submissions, counsel for Ali advised that, through her brother, Umar, acting as her litigation guardian, Marryiam has retained counsel and has brought a dependant’s relief claim against the Estate. [^4]

[15] Marryiam was not on notice of this hearing and, given her claim against the Estate, Marryiam should be given notice of this Application and an opportunity to seek to have her Application heard with or immediately after this Application.

I. Motion for Security for Costs

[16] Ali seeks an Order pursuant to rule 56.01 [^5] that Iqbal post security for costs. R. 56.01 reads:

56.01 (1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,

(a) the plaintiff or applicant is ordinarily resident outside Ontario;

(b) the plaintiff or applicant has another proceeding for the same relief pending in Ontario or elsewhere;

(c) the defendant or respondent has an order against the plaintiff or applicant for costs in the same or another proceeding that remain unpaid in whole or in part;

(d) the plaintiff or applicant is a corporation or a nominal plaintiff or applicant, and there is good reason to believe that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent;

(e) there is good reason to believe that the action or Application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent; or

(f) a statute entitles the defendant or respondent to security for costs.

[17] Iqbal concedes that r. 56.01(1)(a) applies to him, as he is ordinarily resident in Pakistan.

[18] R. 56.01 is discretionary: the judge may make an order “as is just”. In exercising that discretion, the judge must take into account the circumstances of the applicant, his impecuniosity, the merits of the claim, and the possible injustice of denying an applicant the opportunity of having his case adjudicated: 2311888 Ontario Inc v. Ross, 2017 ONSC 1295, at para. 15, citing, with approval, Chachula v. Baillie (2004), 69 O.R. (3d) 175, at paras. 12-14.

[19] Each case must be considered on its own facts: the court should “consider the justness of the order holistically, examining all of the circumstances of the case guided by the overriding interests of justice to determine whether it is just that the order to be made”: Yaiguaje v. Chevron Corporation, 27 ONCA 827, at para 25.

[20] As set out in 2311888 Ontario Inc v. Ross, at para. 17, once the first part of test has been satisfied (as is the case here, in s.56.01(a) has been met), the onus shifts to the applicant to establish that an order for security for costs would be unjust by demonstrating that:

(a) the applicant has appropriate or sufficient assets in Ontario or in a reciprocating jurisdiction to satisfy any order of costs made in litigation;

(b) the applicant is impecunious and the applicant’s claim is not plainly devoid of merits; or

(c) if the applicant cannot establish that he is impecunious, but the applicant does not have sufficient assets to meet a costs order, the applicant must satisfy the court that the applicant’s claim has a good chance of success on the merits.

[21] It is undisputed that Iqbal has no assets in Ontario and that Pakistan is not a reciprocating jurisdiction.

[22] Iqbal was cross-examined on the affidavits he filed in these proceedings. On his cross-examination, Iqbal acknowledged that he has no assets in Ontario that he is “impecunious in Canada”. Iqbal also stated that he has assets in Pakistan, including a house, three residential land lots, “minor” investments in silver and gold (the latter of which he says he gifted to his current spouse), three bank accounts, and a military pension, but claimed that these assets are not sufficient to meet a costs order.

[23] However, on cross-examination, Iqbal refused to provide copies of his bank statements, income tax returns, or to provide any details or documentation to verify his assets or to otherwise establish his alleged lack of financial wherewithal.

[24] On cross-examination, Iqbal also stated that he would not be willing to sell his “small little holdings here in Pakistan to come up with the kind of money that Ali is asking” for as security for the costs of the Application. Iqbal reiterated that position in his oral submissions on this motion.

[25] On a motion seeking an order that the applicant post security for the costs of the litigation, the jurisprudence is clear: if an applicant wishes to rely on his own impecuniosity to resist an order for security for costs, he “must provide evidence of his financial circumstances with “robust particularity”. There must be no unanswered material questions...bald statements unsupported by detail are not sufficient. The threshold can only be reached by tendering complete and accurate disclosure of the plaintiff’s income, assets, expenses, liabilities, and borrowing ability, with supporting documentation for each category.”: 2311888 Ontario Inc., at paras. 18 and 19.

[26] If an applicant fails to establish impecuniosity and is able to show only that he does not have sufficient assets to meet a costs order, then the applicant must satisfy the court that his claim has a good chance of success on the merits (2311888 Ontario Inc., at para. 17).

[27] Ali submits Iqbal has not established that the claims he advances in the Application have a good chance of success on the merits, again pointing to the evidence Ali has put before the court including:

i) the emails Iqbal sent to his children prior to the death of the Deceased in which he told them that he and the Deceased were divorced and that he had remarried;

ii) the records Ali obtained from the courts in Pakistan, including the Marriage Certificate between Iqbal and Nadia Parveen, that show that Iqbal remarried on February 25, 2017;

iii) that when Iqbal was cross-examined on the Marriage Certificate, he initially agreed to provide the original copy but later “rescinded” that undertaking on the basis that it was “irrelevant”. Ali submits that an adverse inference may and should be drawn by the court from Iqbal’s refusal to produce this key document;

iv) that Iqbal is lacking credibility. For example, in an affidavit sworn in these proceedings, Iqbal denied remarrying, but on cross-examination, he admitted that he did remarry.. Also, when Iqbal was confronted with photographs taken of his marriage to Nadia Parveen, he alleged that the marriage took place in 2021 and asserted, without proof, that the Marriage Certificate and the photographs had been altered to show an earlier date (while the Deceased was alive).

[28] It is within Iqbal’s power to produce the original Marriage Certificate to Nadia Parveen and the unedited digital photos of this wedding, both of which might corroborate Iqbal’s claim that this important evidence has been altered. He refuses to do so.

[29] Iqbal’s claims that his pre-death emails to his children telling them he was divorced, the Marriage Certificate describing Iqbal as a Divorcee and his marriage in 2017, and photos of Iqbal’s wedding to Nadia Parveen are “fakes”, while refusing to provide the original evidence. His refusal to provide these seriously undermines Iqbal’s claims and invites the court to draw an adverse inference: namely, that the original documents would not support Iqbal’s allegations that they were “fake”.

[30] On its face, the evidence put forth by Ali on this Application and motion conflicts with Iqbal’s allegations that he was not divorced from the Deceased; a fact that is essential to the success of Iqbal’s claims to a share of the Estate.

[31] As noted above, on May 16, 2017, the Deceased commenced a Divorce Application in which she stated that she and Iqbal had been separated since July 28, 2015. For reasons unknown to Ali, the Deceased did not proceed with the divorce Application, which was ultimately dismissed for delay. Notwithstanding, the Divorce Application offers evidence that supports Ali’s position that Iqbal and the Deceased were separated at the time of her death; a factual finding that may be determinative of Iqbal’s entitlement to survivor’s benefits under the Plan.

Manulife Insurance Payment

[32] Ali acknowledges that he holds a cheque in the amount of $100,000 payable to Muhammad (Iqbal) Khan, who was the designated beneficiary. Ali is prepared to return the cheque to Manulife for safekeeping, pending a determination as to whom may ultimately be entitled to those proceeds.

[33] This is not a motion for summary judgment and these reasons do not attempt to identify all the evidence that may ultimately be relevant to one or more of the issues to be decided. However, based on the record before the court at this hearing, except for showing that he was named as the beneficiary of the Manulife Insurance policy - the proceeds of which may be deemed as an Estate asset for the purposes of Marryiam’s dependant’s relief claim - Iqbal has failed to establish that his claims against the Estate have merit.

[34] For the reasons set out, I find that Iqbal has failed to meet his onus to establish that he has a good chance of success on his claims,

1. to set aside the Certificate;

2. to establish that he is the surviving spouse of the Deceased; and,

3. to establish that he is a “qualifying spouse” and entitled to the survivor benefit payable under the Plan.

[35] Based on the evidence before the court on this motion, I also conclude that Iqbal has not established that he is impecunious, nor has he established that an order for security for costs would essentially prevent him from proceeding with this litigation.

[36] In reaching that conclusion, I consider, among other things, Iqbal’s refusal to answer relevant questions and/or to provide documents that could support his assertions respecting his lack of financial wherewithal. In the absence of that evidence, I do not accept Iqbal’s assertion that it would be difficult or impossible for him to proceed with this litigation if he is ordered to post security for costs: he has not provided evidence of his financial circumstances with any particularity, let alone the “robust” particularity required.

Would it be “just” to grant the Order?

[37] Ali submits, and I accept, that an order for security for costs is discretionary, and one that requires the court to consider the justness of the order sought “holistically” and after having examined all of the circumstances of the case.

[38] The merits of Iqbal’s case are relevant and have already been discussed. However, when considering the “justness” of the order sought and all the circumstances of the case, reference must be made to the position taken by Iqbal on this motion.

[39] In oral submissions, Iqbal submitted to the court that if an order were made requiring him to post security, he would simply appeal that order. He noted that it would cost him nothing to appeal, as he is unrepresented and does not incur legal fees. However, he noted that his appeal would require Ali to incur legal fees, because Ali is represented by counsel.

[40] While the evidence and circumstances are more than sufficient to persuade me that it would be just to exercise my discretion to order security for the costs of this litigation, Iqbal’s statement further supports that conclusion. His perception that he is immune from any personal costs consequences and his acknowledgement that he can force Ali to incur costs, is precisely a justification for the rule allowing a court to order security for costs.

[41] By refusing to disclose his assets with any particularity, Iqbal seeks to protect his assets from risk, while openly acknowledging that he intends to take steps in the litigation that will force Ali to incur costs, thereby putting Ali’s assets at risk defending Iqbal’s Application, while leaving Ali with no realistic hope of recovering costs from Iqbal.

[42] For all the reasons set out, I conclude that the interests of justice dictate that an Order for Security for Costs be made as against Iqbal.

Amount to be Paid for Security for Costs

[43] In his affidavit of February 9, 2023, Ali estimated that he would incur legal fees of approximately $75,000.00 to respond to the Application. As of that date, he had already incurred fees of close to $30,000.00 and anticipated incurring a further $45,000 to the conclusion of the hearing. In oral submissions, Ali’s counsel stated that Ali’s affidavit is now out of date and that the costs her client has now incurred costs well in excess of $30,000; consequently, Ali seeks an order that Iqbal post $45,000 as security for costs. Ali’s counsel submitted that an Order for Security for Costs could require payments in stages.

[44] The second part of Ali’s motion is a request that an order be made converting this Application to an action. That request contemplated that pleadings would then be exchanged, affidavits of documents prepared, and examinations for discovery conducted.

[45] As discussed below, I agree that the Application should be converted to an action, However, under the order made below, the parties are to use the existing pleadings and transcripts from the cross-examinations. That approach, I hope, will be more efficient and less costly.

[46] In determining an appropriate amount as security for costs to be ordered, I have taken into account that there will be less to do to ready this Application (now an action) for trial. I conclude that it would be appropriate and “just” to order Iqbal to immediately post security for costs in the amount of $30,000, with a further payment of $15,000 to be made no later than 30 days before the action is scheduled for trial.

[47] I arrive at these amounts after taking into account the costs that have already been expended and the costs that will have to be expended to get this matter to a stage at which it may be placed on a hearing list. The total amount to be posted is 60% of the $75,000.00 of Ali’s estimated total costs. Ali submits, and I accept, based on the court record that has grown since February 2023, that Ali’s $75,000 figure was an underestimate. The $45,000 to be posted as security, is lower than the usual percentage awarded on a partial indemnity basis of 66% ($75k x 66% = $49.5k), that might be awarded against Iqbal, if he were to be unsuccessful.

[48] In fixing the first payment amount of $30,000, I also take into account the assertion, which is well-supported by the evidence before me, that Iqbal obtained an order in Pakistan that allowed him to obtain title to and to sell real property in Pakistan that was owned solely by the Deceased, by relying upon affidavit and other evidence that Iqbal acknowledged in cross-examination was inaccurate and untrue.

[49] The only evidence before me as to the value of the asset sold by Iqbal comes from Ali, whose investigations show that the property was worth approximately $63,000 CAD. On that basis, I infer that Iqbal has been enriched by that amount from an asset belonging to the Deceased or the Estate and accordingly, he would appear to be in a position to pay the security for costs ordered.

Disposition: Security for Costs Motion

[50] For the reasons set out, Iqbal is to pay $30,000 into to court to the credit of this Application on or before November 17, 2023. If he fails to make the payment, the respondent shall be at liberty to bring a motion to dismiss this Application on that basis.

[51] Iqbal is ordered to make a further payment into court of $15,000.00, to be made no later than 30 days before the action is scheduled for trial.

II. Conversion of the Application to an Action

[52] Ali sought an order converting the entire Application into an action and as referenced above, contemplated that the order would direct the exchange of pleadings, further examinations for discovery, etc. Notwithstanding those written submissions, in oral submissions, Ali’s counsel acknowledged that it would be open to this court to make an order directing a trial of issues, and, to that end, to direct what would be used as pleadings.

[53] I accept and adopt the following statement of the applicable principles, that apply when determining whether to convert an application to action, as set out at paragraph 55 of Ali’s Factum:

The following general principles are to be considered in determining whether to convert an Application into an action: (1) whether there are material facts in dispute; (2) the presence of complex issues requiring expert evidence and/or a weighing of the evidence; (3) whether there is a need for the exchange of pleadings and for discoveries; and (4) the importance and impact of the Application and of the relief sought: Li v. Bank of Nova Scotia, 2023 ONSC 4235, at para. 38

[54] In this case, there are material facts in dispute, somewhat complex legal and factual issues that may possibly require expert evidence (on such issues as authenticity of documents, digital and otherwise), and a weighing of the evidence. There are also serious issues of credibility that will require viva voce evidence to resolve.

[55] I conclude, therefore, that the Application should be converted to a trial, subject to directions that are designed to minimize delay and avoid unnecessary costs.

Disposition: Application to be converted to an Action - Order For Trial And Directions

[56] After hearing submissions from both parties, I have determined to convert this Application to an action, subject to the following directions:

1. For pleadings: i) The applicant’s Application record (Document #20, in CaseLines Long Motion Bundle) is to serve as his Statement of Claim; and ii) The respondent’s responding Application record (Document #16, Caselines Long Motion Bundle) shall serve as his statement of defence.

2. Iqbal is to prepare a Trial Record as per r. 48.03. It shall include the pleadings as ordered in 1., above, together with the other documents required under the rule.

3. Within 60 days of the date of release of these reasons, Iqbal is to serve, file, and upload the Trial Record to Caselines.

4. The following shall serve as examination for discoveries: i) The transcript of the cross-examination of Iqbal shall serve as his examination for discovery; ii) The written questions (interrogatories) posed by Iqbal and Ali’s answers to the questions shall serve as the examination for discovery of Ali;

5. Leave is granted to Marryiam Khan to seek to have her dependant’s relief Application heard with or immediately after the hearing of this action.

III. Injunctive relief sought by Iqbal

[57] Iqbal chose not to make oral submissions in support of his request for relief, relying, instead, on the materials filed, including his factum.

[58] Iqbal’s factum contained Iqbal’s bald assertions, without specific reference to the evidence and lacked any meaningful reference to legal authorities. For those reasons, Iqbal’s factum was not helpful to the court.

[59] The materials filed include a copy of the Order of Justice Ramsey made on October 27, 2022, restricting the distribution of Estate assets. Iqbal commenced the Application over two years after the death of the Deceased and when Ramsay J. made his order, as Estate trustee, Ali had already effected a transfer of the Estate’s largest asset, the House, to Ali, Umar and Marryiam, as co-owners and the assets of the Estate had been distributed. The three children still live in the House, and Marryiam is provided with a home and support from her two brothers, who cover all the House expenses.

[60] Ali states that he and his siblings used their own money to pay off the mortgage on the House and to pay certain other Estate expenses and that, depending on the outcome of this litigation, Ali and his siblings may seek an accounting from the Estate and a repayment of monies expended to pay Estate debts and/or to preserve Estate assets.

[61] Iqbal submits that the Certificate was improperly issued to Ali without Iqbal’s consent or renunciation and in oral submissions, asked for an order revoking the Certificate and removing Ali as Estate trustee of the Deceased’s Estate. However, Iqbal has not put forth an alternate person to assume the role of Estate Trustee or to act as Estate Trustee During Litigation. Moreover, it would appear that there are no assets remaining in the Estate and that a revocation of the Certificate would be of little or no benefit to Iqbal.

[62] In his draft proposed order, Iqbal includes a paragraph requiring Ali to prepare Estate accounts.

[63] In my view, it is premature to make an order for an accounting at this time, when the beneficiaries of the Estate have yet to be determined. For that reason, unless and until a court has determined that Iqbal has an interest in the Estate, his request for that relief cannot be granted.

[64] In addition, should a court find that Iqbal is entitled to a share of the Estate, there will likely be no argument from Ali, Umar, or Marryiam, for an accounting, required to determine what amounts, if any, they are owed by the Estate for the monies they have paid toward debts of the Estate and other Estate-related costs. Neither Umar nor Marryiam is a party to this proceeding, nor has either made submissions on this motion. For that reason, also, in my view, it is premature to order that Ali provide Estate accounts.

Preservation of Estate or former Estate Assets

[65] Iqbal also sought an order that no Estate funds be used to finance the defence of his claim. With respect to that request, Ali submits that there are no Estate assets remaining, and that to date, no Estate assets have been used to fund the defence of the litigation brought by the Iqbal.

Preservation Order:

[66] The Order of Ramsay J. remains in effect, and the order below is made in addition to his Order.

[67] While recognizing that the House is technically no longer an Estate asset, given the allegations made by Iqbal concerning the validity of the Certificate, under which the House was transferred to the Deceased’s three children by means of the Certificate, I accept his submission that an order should be made so as to ensure that the House is preserved until the outcome of these proceedings. I also accept Ali’s evidence, that the three children also seek to preserve the House, in which they are all living. Accordingly, I make the following orders:

1. The House is not to be encumbered, sold, transferred, disposed of except upon notice to and the consent of Iqbal and/or pursuant to court order.

2. A copy of this Order may be registered on title to the House by either party, with a copy of the registration to be provided to the other party within 15 days of the registration.

3. Iqbal’s request for any other interim relief is dismissed.

Costs of the Motion of May 16, 2023.

[68] As noted above, I was the judge who heard the May 16, 2023, motion brought by Iqbal. In my endorsement on that motion, I reserved the costs of the motion to the judge hearing this Application. It may bear noting that I was not seized of this matter and had no expectation that I would also be the judge assigned to hear this Application.

[69] The May 16, 2023, motion was brought by Iqbal, purportedly under Rule 21. As set out in my Endorsement of that date, Iqbal’s motion was dismissed and the timetable order, which had been sought by Ali, and opposed by Iqbal, was granted.

[70] Ali was entirely successful both in resisting Iqbal’s motion and in obtaining an order granting him an extension of time to deliver his responding materials. As the successful party, Ali is entitled to his costs.

[71] At this hearing, Ali’s counsel served Iqbal with his Costs Outline, which was filed with the court through the Registrar. Ali seeks costs from Iqbal for successfully defending Iqbal’s motion and then obtaining the timetable order Ali sought, on a partial indemnity basis, fixed in the amount of $3,239.14.

[72] Iqbal submits that each party should bear their own costs because when his motion came before Justice Carpenter-Gunn on May 5, 2023, it could not proceed because Ali’s materials had not been uploaded on Caselines. I disagree.

[73] As set out above, Iqbal was unsuccessful in his motion and for that reason Ali is presumptively entitled to his costs. Had Iqbal been successful, then he would have been entitled to his costs of all court attendances.

[74] I accept the costs submissions made by Ali and find that the costs claimed as itemized in the Costs Outline, are fair and reasonable and within an amount that Iqbal should have reasonably expected to pay.

[75] Costs of the May 16, 2023, motion is hereby awarded to Ali and fixed in the amount of $3,239.14 inclusive of disbursements and HST. This amount is to be paid by the applicant, Muhammad Iqbal Khan, forthwith.

Costs of Iqbal’s Request for Interim Injunctive Relief

[76] This hearing began at 10 a.m. and concluded at approximately 4:20 p.m. In Ali’s factum, he responded to the applicant’s request for injunctive relief, the majority of which was not granted: the Certificate was not returned; the House was not returned to the Estate, and, except for the order directing that the House not be transferred or encumbered, etc. the injunctive relief south by Iqbal was not granted. In view of the order made respecting the House, there was some divided success on Iqbal’s motion.

[77] In my view, the costs of Iqbal’s motion for injunctive relief should be reserved to the judge hearing the action.

Costs of Ali’s Motion for Security for Costs and for the Conversion of the Application

[78] Ali was successful on his motion, which consumed most of the hearing day. As such, Ali is presumptively entitled to his costs. I would urge the parties to attempt to reach an agreement on costs. If they are unable to do so, then costs submissions shall be made as follows:

1. Within 21 days of the date of the release of this decision, Ali shall serve and file his written costs submissions, not to exceed three pages, double-spaced, together with his draft bill of costs, and copies of any relevant offers to settle.

2. Within 14 days of the service upon him of Ali’s costs submissions, Iqbal shall serve and file his responding submissions, not to exceed three pages, double-spaced, together with his draft bill of costs, and copies of any relevant offers to settle.

[79] Submissions are to be served and filed, via email, through the trial coordinator at elisabth.illes@ontario.ca who is asked to forward them to my attention.

[80] If no submissions are received within 35 days of the date of the release of these reasons, the parties shall be deemed to have resolved the issue of the costs and costs will not be determined by the court.

Justice L. Sheard

DATE: October 19, 2023

Footnotes

[^1]: On October 27, 2022, Ramsay J., ordered that no distribution of the assets of the Estate was to take place until further order. [^2]: For ease of reference only, and without intending any disrespect, I refer to the parties and the surviving members of the Khan family by their first names. [^3]: Pursuant to O. Reg. 54/95, as the surviving spouse, Iqbal’s preferential share of the Estate would be $200,000. [^4]: Under those provisions, for the purposes of Marryiam’s dependant’s relief claim brought under s.63(2)(f) of the SLRA, amounts payable under a policy of insurance or under a designation of beneficiary life insurance “shall be deemed to be part of his or her net Estate for purposes of ascertaining the value of his or her Estate, and being available to be charged for payment by an order under clause 63(2)(f)”. [^5]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194.