Superior Court of Justice – Ontario

Court File No.: CV-21-664502
Date: March 24, 2025

Re: Gobinath Papiah v. Mohammed Ghandehari

Before: Associate Justice C. Wiebe

Counsel:
Michael Grivich for Mohammed Ghandehari
Julia Vilorio Peguero for Gobinath Papiah

Heard: March 24, 2025

Reasons for Decision

Introduction

[1] The defendant, Mohammed Ghandehari, brought this motion seeking two orders:

• an order that the plaintiff, Gobinath Papiah, post $37,772.19 in security for costs; and
• an order that Mr. Papiah attend at an in-person defence medical examination with Dr. Jeremie Larouche on April 17, 2025, with the plaintiff’s costs of attending (i.e., air travel from India to Toronto and back, hotel accommodation and food in Toronto, etc.) to be paid by Mr. Papiah.

Mr. Papiah opposed the requested security for costs. He was willing to attend at the scheduled defence medical but only at Mr. Ghandehari’s expense.

[2] Having read the motion material and heard the oral submissions, I ruled orally as follows:

• I dismissed the motion for security for costs;
• I ordered that there be an in-person defence medical examination of Mr. Papiah with Dr. Jeremie Larouche on April 17, 2025, starting at 9 a.m., with the defendant to pay the plaintiff’s reasonable costs of attending (i.e., air travel from India to Toronto and back, hotel accommodation and food, etc.) up-front;
• I awarded the plaintiff $1,500 for the costs of this motion to be paid by the defendant in thirty (30) days from March 24, 2025.

I gave oral reasons but advised that I would provide written reasons as well. These are those written reasons.

Background

[3] The defendant filed three affidavits sworn by a litigation clerk. The plaintiff filed a lawyer’s affidavit. The following facts were evident from the motion material.

[4] Mr. Papiah immigrated to Canada from India. On January 7, 2020, Mr. Papiah was a pedestrian when he was hit by the defendant’s motor vehicle at an intersection. He claims to suffer from whiplash, back, knee and ankle pain, major depressive disorder and somatic symptom disorder. He commenced this action with a statement of claim dated June 23, 2021. The defendant served a statement of defence and jury notice in October 2021.

[5] Mr. Papiah moved back to India in 2021 and has resided there ever since; this is admitted by the plaintiff. Mr. Papiah’s examination for discovery took place remotely on August 22, 2022. The defendant admitted that at this discovery Mr. Papiah stated he now resided in India but had plans to move back to Canada.

[6] Mr. Papiah obtained a lengthy expert report from Dr. Mark Friedlander, a chronic pain specialist, on February 28, 2023. There was an unsuccessful mediation on March 16, 2023.

[7] Mr. Papiah set this action down for trial on May 5, 2023. Mr. Papiah completed his undertakings in July 2023, including confirmation that he does not have adverse costs insurance.

[8] At the assignment court of February 14, 2024, Justice Wilson scheduled a pretrial conference for September 26, 2025, and a trial for October 2025.

[9] On February 26, 2024, defence counsel sent correspondence asking for the plaintiff’s availability for a defence medical examination with Dr. Larouche. On March 26, 2024, the plaintiff’s counsel responded advising that Mr. Papiah resided in India and had no plans on returning to Canada. On November 18, 2024, eight months later, the defendant scheduled and brought this motion returnable for forty minutes on March 24, 2025.

[10] During the argument of the motion, both counsel conceded that India is a reciprocating jurisdiction and will enforce a costs order against Mr. Papiah.

Security for Costs

[11] The governing rule for motions for security for costs is Rule 56.01. This rule states that a court may make an order for security for costs “as is just where it appears that” one or more of six specified circumstances are established in the evidence. One of these circumstances is (a): “the plaintiff . . . is ordinarily resident outside of Ontario.” This is the circumstance that the defendant relies upon.

[12] It is undisputed that the plaintiff ordinarily resides in India and has done so since 2021. There is no question, therefore, that the defendant has met his initial onus of establishing entitlement to security for costs. But that does not end the matter. At the second stage of the motion, the court must step back and look at the justness of the order using a holistic approach; see Yaiguaje v. Chevron Corporation, 2017 ONCA 827, para 25.

[13] Delay in bringing the motion is one of those factors concerning the justness of the order; see Chevron, supra, para. 24. I note that in Welhelm Ventures Corporation v. Rasoee Restaurant Systems Inc., 2018 ONSC 4641, paras 8-9, Master B. McAfee (as she then was) found that an unexplained delay in bringing a motion for security after the action was set down for trial and 4.5 years after the statement of defence was served was “fatal” to the motion.

[14] Similarly, in the motion before me, the defendant waited until well after the action was set down for trial to bring the motion. Indeed, the defendant waited until well after the pretrial conference and trial were scheduled. The motion should have been brought in the fall of 2022, namely right after the defendant learned that Mr. Papiah resided in India. Mr. Grivich tried to explain the defendant’s delay by arguing that the defendant relied upon Mr. Papiah’s statement at discovery that he “had plans” to move back to Canada. There was no evidence that the defendant obtained details at discovery or thereafter of those alleged plans. Without those efforts, I do not find this explanation acceptable given the gravity of this motion.

[15] In short, Mr. Papiah has now incurred the costs of answering undertakings, a mediation, a detailed expert report, the assignment court attendance and no doubt other costs in preparing for trial, all without the threat of a motion for security for costs based on his foreign residence, a threat that he now faces at this late hour. He may not have incurred those costs had this motion been brought in a timely way. Furthermore, there is now a pretrial conference scheduled in six months and a trial in seven months, both of which would be threatened if I made the requested order for security for costs. An order for security for costs stops the plaintiff from taking any steps until the security for costs is posted; see Rule 56.05. I was not prepared to do this given the delay of the motion, in the interests of justice.

[16] There are two other secondary factors I considered. First, as stated earlier, both lawyers admitted that India is a reciprocating jurisdiction and will enforce a costs order against Mr. Papiah. Second, the evidence on this motion showed that the plaintiff’s case is not frivolous and vexatious. Therefore, the defendant is in the same position now without security for costs he would be in if Mr. Papiah resided in Ontario.

[17] For these reasons I denied the motion for security for costs.

Costs of the Defence Medical

[18] The defendant wanted an in-person medical examination of Mr. Papiah by Dr. Larouche. The plaintiff consented to such an examination but was not prepared to pay the costs to him of doing so. The governing legislation for such examinations is section 105 of the Courts of Justice Act, RSO 1990, c C.43 and Rule 33. None of these sections specify how the plaintiff’s costs of attending the examination are to be paid.

[19] Neither lawyer provided caselaw on the issue of the costs of the defence medical examination. Mr. Grivich conceded that the authorities he consulted placed the obligation to pay onto the defendant. This only makes sense to me. This is a right given to the defendant and is intended to benefit the defendant, not the plaintiff. It only makes sense that the defendant should pay the costs if the defendant chooses to exercise this right.

[20] In the motion before me, the plaintiff was in fact prepared to have the examination conducted virtually to spare expense and inconvenience; but the defendant would not agree to that option. Therefore, all the more reason for the defendant to pay these costs. That is what I ruled.

Costs of the Motion

[21] Neither party filed costs outlines. Mr. Grivich conceded that he had orally informed Ms. Peguero that the defendant would be seeking $2,500 in costs in the event of a success by the defendant. Ms. Peguero stated that, in light of the success of the plaintiff, the plaintiff should be awarded $1,500 in costs to be paid in thirty (30) days. Mr. Grivich did not find this submission unreasonable. That is what I ordered.

Conclusion

[22] For these reasons, I made the order I made as described in paragraph 2 above.

Date: March 24, 2025

Associate Justice C. Wiebe