Court File and Parties
Court File No.: CV-19-0901 and CV-20-4546 (Brampton) Date: 2024-02-05 Ontario Superior Court of Justice
Between: Sukhjinder Gandhi, Applicants -and- Olusegun Fajebe, Respondents
And Between: Olusegun Fajebe, Applicants -and- Sukhjinder Gandhi and Bhupinder Moondi, Respondents
Counsel: Jide Oladejo, for Fajebe Chris Tonks, for Ghandi
Heard: In writing
Justice: R. Chown
Costs Endorsement
1Ghandi’s application, issued February 28, 2019, sought a declaration that he was the legal and beneficial owner of 175 Vodden Street West, Brampton and a declaration that Fajebe occupied the premises as a tenant (and related relief, including an order for leave to issue a writ of possession). As alternative relief, he sought a declaration setting out his and Fajebe’s respective legal and beneficial interests in the property and an order that the parties financially compensate each other for their respective contributions to the property. He also sought an order that the property be listed and sold.
2Fajebe’s application, issued December 3, 2020, sought a declaration that the property was held in trust for him by Ghandi and an order transferring the property to Fajebe. He also sought relief against Moondi, but he later abandoned those claims.
3Each party took the position that they had a 100% interest in the property. I found Ghandi’s interest to be 75.2% and Fajebe’s to be 24.8% and ordered the property sold. Both parties were unsuccessful, but Ghandi was “less unsuccessful” than Fajebe.
4I accepted that Fajebe thought that through his “rent” he was paying the expenses associated with ownership of the house and he thought he was building equity in it. But he unilaterally reduced and then stopped his payments. I also found that Fajebe could not reasonably have thought he would acquire all the equity in the house with no benefit whatsoever to Ghandi. I did not accept Fajebe’s evidence that he did not know Ghandi contributed towards the purchase price, but I also found that even if Fajebe was unaware of Ghandi’s contribution, it was not objectively reasonable for him to believe that Ghandi would accept the risk of becoming a mortgagor without also enjoying some benefit.
5I found that Ghandi’s position at trial was inconsistent with the position he took during the recorded conversation. I did not accept Ghandi’s position that Fajebe owed or paid his net proceeds of sale ($34,306.37) to Ghandi for repair work or other costs, as Ghandi claimed. Instead, I found that this was Fajebe’s contribution to equity in the premises. I found that Ghandi did not document his receipt and use of the $34,306.37. I observed that Ghandi admitted in the RECO proceedings that he had violated the Code of Ethics in his dealings with Fajebe. Furthermore, I found that Ghandi had not met his burden to show that his relationship with Fajebe was a landlord-tenant relationship. I found instead that it was an implied trust based on their respective contributions to the property, but neither party documented the arrangement and neither party itemized or provided the court with detailed documentation for their contributions to the property.
Offers to Settle
6Ghandi made two offers to settle and Fajebe made one. The costs consequences of rule 49.10 do not apply to any of the offers because they contained terms that were not ordered. For instance, Ghandi’s last offer required Fajebe to withdraw his RECO complaint. Ghandi’s offers offered a sum of money in exchange for vacant possession of the property. The last offer was for a significant sum, $75,000, but it did not anticipate that I would declare the parties’ respective beneficial ownership interests in the property as a percentage. To compare the offer and the judgment, I would need to determine the value of the property at the time of the offer. Therefore, comparing the offer to the result at trial is not possible without appraisal evidence. Ghandi has provided comparable properties in his costs submissions and invites me to find based on the value of the comparable properties that his offer would have been more favourable for Fajebe than the result at trial. I am not prepared to do so. I might take a different view of the matter if the result of the comparison was obvious, but it is not. Rule 49.10 is inapplicable. Furthermore, I do not find any of the offers to be material under rule 57.01.
57.01 Factors
7Ghandi argues that some of the factors in rule 57.01 support his position on costs. For instance, he argues that Fajebe delayed in commencing his proceeding despite saying as early as 2017 he intended do so. He says that Fajebe’s proceeding was unnecessary and adding Moondi as a party simply delayed the proceeding and caused a further case conference, only to result in Fajebe discontinuing his claims against Moondi. Ghandi also points to Fajebe’s adjournment requests and Bloom J.’s $3,500 costs award.
8However, in my view, these considerations deserve little weight in the circumstances of this case. I decided the case based primarily on onuses. That is, both parties largely failed to meet the onuses they faced.
9Ghandi has presented a reasonable bill of costs and his alternative position on costs is that he should receive partial indemnity costs apportioned based on the respective shares of equity in the property. It seems to me that if I were to do that, I would have to award Fajebe a proportionate his partial indemnity costs. Fajebe has not provided a bill of costs and argues that both parties should bear their own costs. I agree with Fajebe on this point.
10There has been divided success and, although Ghandi has been “less unsuccessful” than Fajebe, I do not think the court should assist Ghandi further than it already has by awarding him costs. I might have taken a different view had Ghandi made an operative offer to settle.
Disposition
11Apart from any interim costs awards previously made, there shall be no order for costs in this proceeding.
Chown J. Released: February 5, 2024