Superior Court of Justice – Ontario

Court File No.: CV-16-56670
Date: 2025-06-04

Parties

RE: Sonalben Brahmbhatt
Plaintiff

-and-
Dineshchandra Patel, Bhanu Laxmi Inc. and Om Surya Inc.
Defendants

AND BETWEEN:
Dineshchandra Patel
Plaintiff by Counterclaim

-and-
Sonalben Brahmbhatt, Bhaskar Brahmbhatt, Jigar Vijaykumar Patel and Madhavi Bhanunhai Patel
Defendants by Counterclaim

Before: L. Sheard

Counsel:
Christina Bowman for the Moving Party/Defendant by Counterclaim, Jigar Vijaykumar Patel
Nisar Patel for the Responding Party/Plaintiff by Counterclaim, Dineshchandra Patel

Heard: In writing March 31, 2025

Decision on Motion to Extend Time for Costs Submissions and Costs

Background

[1] This decision relates to the motion (the “Motion”) brought by Jigar Vijaykumar Patel (“Jigar”)[1] for an order setting aside the order of Parayeski J. dated June 3, 2019 (the “Parayeski Order”). Pursuant to the Parayeski Order, Jigar was to pay the plaintiff by counterclaim, Dineshchandra Patel (“Dinesh”), the sum of $50,000 and, together with a co-defendant by counterclaim, Madhavi Bhanunhai Patel, to pay Dinesh the further sum of $127,697.38, together with costs of $19,000.00.

1. Motion to Extend the Time to Deliver Costs Submissions

[2] For reasons set out in my decision of April 15, 2025, I dismissed the Motion and set a timetable for the delivery of costs submissions. Jigar missed his delivery deadline and moved for an extension of time, which Dinesh did not oppose.

[3] I have received and read Jigar’s motion to extend the deadline for the delivery of his costs submissions, which have also been received.

Disposition: Motion to Extend the Time to Deliver Costs Submissions

[4] Jigar’s motion for an extension of time is granted, without costs.

2. Costs of Motion to Set Aside the Parayeski Order

[5] This decision follows my receipt and review of the parties’ costs submissions.

Positions of the Parties

Dinesh

[6] Dinesh seeks his costs of the Motion on a full indemnity basis in the amount of $22,182.05 (including disbursements and HST).

[7] He justifies his request for costs on an elevated scale as follows:

• An unaccepted Offer to Settle: On June 3, 2024, Dinesh offered to settle Jigar’s motion on the basis that Jigar pay “the full cost of the June 3rd, 2019 order of Justice Parayeski” within three days of accepting the offer, and a further $8,100, plus HST, for Dinesh’s partial indemnity costs of the Motion;
• The Motion was without merit;
• Jigar’s affidavit on the Motion was found to be untruthful;
• Jigar failed for years to pay the amounts owing under the Parayeski Order and brought the Motion to delay payment; and
• Jigar’s failure to comply with the Parayeski Order, his “remaining at large”, and bringing the “non-meritorious motion”, is conduct that should be seen as “egregious”, worthy of sanction, and entitling Dinesh to his costs on a full indemnity basis.

[8] Dinesh cites Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766, para 8, which reads, in part:

…There is a significant and important distinction between full indemnity costs and substantial indemnity costs. An award of costs on an elevated scale is justified in only very narrow circumstances – where an offer to settle is engaged or where the losing party has engaged in behaviour worthy of sanction: Davies v. Clarington (Municipality), 2009 ONCA 722, para 28. Substantial indemnity costs is the elevated scale of costs normally resorted to when the court wishes to express its disapproval of the conduct of a party to the litigation. It follows that conduct worthy of sanction would have to be especially egregious to justify the highest scale of full indemnity costs.

Jigar

[9] Jigar submits that “while overall the respondents ‘costs outline’ is not unreasonable… only partial indemnity costs should be awarded, at best”.

[10] Jigar’s submissions include that:

• Dinesh should have filed a Bill of Costs as per r. 57.01(5), and not a Costs Outline;
• Dinesh should also have included his dockets, citing: Fernandes v. Peel Educational, 2015 ONSC 3753 (“Fernandes”);
• His conduct does not meet the high threshold required under r. 57.01(f) warranting the scale of costs claimed by Dinesh;
• Dinesh has failed to conduct himself in good faith by attaching prejudicial documents to his last affidavit and including them in his compendium, without complying with proper procedure to have this affidavit admitted into evidence;
• Jigar was entitled to bring the Motion and it would be “illogical” for him to pay the judgment or to submit to an examination in aid of execution while the Motion was pending;
• Jigar brought the Motion as soon as he learned of the Parayeski Order and was not to blame for any delay in the hearing of the Motion: on the April 2024 return date, no judge was available, the delay in setting a new date was caused by the unavailability of one or the other’s counsel; and
• Jigar made offers to settle. Both offers contemplated an order setting aside the Parayeski Order but in his offer of May 31, 2024, Jigar offered to pay the judgment amount of $127,000 into court and to reserve the costs of the Motion to the trial judge.

The Law

[1] The court’s jurisdiction to award costs is found under section 131 of the Courts of Justice Act, RSO 1990, c C.43 (the “CJA”), in Rule 57 of the Rules of Civil Procedure, RRO 1990, Reg 194, and in the jurisprudence.

[2] The applicable sections of Rule 57.01 read:

(1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(b) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(c) a party’s denial of or refusal to admit anything that should have been admitted; and

(i) any other matter relevant to the question of costs.

[3] Overall, the objective is to fix an amount that is fair and reasonable, having regard for, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario, paras 26 and 38.

Analysis

Amount Claimed

[4] I start with Jigar’s acknowledgment that the amount set out in Dinesh’s Costs Outline is “not unreasonable”. That submission is understandable given that the parties’ costs of the Motion are almost identical: in Dinesh’s Costs Outline, his full indemnity costs are $22,182.05 and in Jigar’s Costs Outline, his full indemnity costs are $22,512.00.

[5] I do not accept Jigar’s submissions that, on a motion, parties are required to provide dockets. I decline to follow Fernandes, which was overturned (for other reasons) on appeal: 2016 ONCA 468.

[6] Given the similarity of the parties’ costs, even without dockets, it is reasonable to find, which I do, that Dinesh’s actual legal costs are $22,182.05.

Scale of Costs

[7] Set out below, I consider the parties’ submissions as to what scale of costs is appropriate.

[8] Dinesh’s offer required immediate payment of the Parayeski Order – an outcome he did not achieve on the Motion – and payment of partial indemnity costs of the Motion – the usual rate awarded to a successful party. In other words, this offer was not a real compromise by Dinesh.

[9] Jigar’s offers do not apply as they contemplate success on the Motion – the setting aside of the Parayeski Order – which he did not have.

[10] I do not accept Dinesh’s submission that Jigar’s conduct was “egregious” on the basis that he failed to pay the Parayeski Order, “remained at large”, and then brought the meritless Motion. Among other things, there is no evidence to support the first two assertions.

[11] I do not accept Jigar’s submission that I should find that Dinesh acted in “bad faith” when he put an affidavit into evidence that he signed after Jigar’s cross-examination. At the outset of the hearing of the Motion, I considered Jigar’s objection to the admission of the April Dinesh Affidavit and determined that it should be admitted. Para. 29 of my reasons on the Motion bears repeating:

[29] Jigar’s submission that the April Dinesh Affidavit is prejudicial to him has merit: the exhibits to it appear to reveal that Jigar has not been completely truthful to this court on this motion. In my view, to exclude the April Dinesh Affidavit would enable Jigar to submit and rely on evidence in his December 1, 2023, affidavit that appears to be inaccurate or untrue. [Emphasis added].

[12] In my view, Jigar’s attempt to mislead this court is a “matter relevant to the question of costs”: r. 57.01(i). Without finding Jigar’s conduct to be “egregious”, I conclude that it does merit an award of costs on a substantial indemnity scale.

[13] In his Costs Outline, Dinesh uses a substantial indemnity rate of 80%. Using my determination that Dinesh’s full indemnity costs are $22,182.05, 80% of that amount totals $17,749.64.

Disposition on Costs

[14] For the reasons given, Dinesh’s costs of the Motion are fixed at $17,749.64, all-inclusive, payable by Jigar, forthwith.

DATE: June 4, 2025

L. Sheard

[1] As parties share the last name “Patel”, for ease of identification, the parties are referred to by their first names.