Court File and Parties

Court File No.: CV-11-00439398-0000 Date: 2025-09-02 Superior Court of Justice – Ontario

Re: Chand Morningside Plaza Inc. and Joshi Group of Companies Ltd., Plaintiffs

And: Healthy Lifestyle Medical Group Inc., Rochak Badhwar, Gore Doctors Medical Inc., Ashok Badhwar, Usha Badhwar, Aash Karia, Bindaas Capital Inc. and Marvin Talsky, Defendants

Before: Koehnen J.

Counsel: Jonathan Rosenstein for the plaintiffs Rhea Sharma for the defendants Ashok and Usha Badhwar

Heard: In writing

Endorsement

[1] In reasons indexed as Chand Morningside Plaza Inc. v. Healthy Lifestyle Medical Group Inc., 2024 ONSC 7285 I dismissed the plaintiffs' action against the only remaining defendants in this action, Ashok and Usha Badhwar. The Badhwars now seek their costs of the action.

[2] The issue of costs is somewhat complicated because the Badhwars did not have counsel at trial. Instead, they were represented by their daughter-in-law, Rhea Sharma.

[3] The Badhwars were at various times represented. They have submitted a single two-page bill from Paul Robson for services rendered between 2018 and 2023.

[4] The plaintiffs raised several issues with respect to that account. It is not signed as required by section 2 of the Solicitor's Act. It covers lengthy periods during which Mr. Robson was suspended from practice. It groups services into large blocks of 15, 30, 60, 25, 65, and 140 hours with relatively minimal descriptions of services. Mr. Robson subsequently had his license to practice suspended. Finally, the plaintiffs point out that there is no evidence that the Badhwars actually paid the account. I share those concerns and am not inclined to award costs that reflect the amount indicated in the Robson account. That said, it is likely that the Badhwars paid something to their various counsel for this action that is not reflected in earlier costs awards.

[5] The Badhwars also seek costs for Ms. Sharma. The plaintiffs' position on Ms. Sharma's costs is unclear. In their sur-reply submissions they suggest that she is not entitled to costs because there is no evidence that she was compensated by the Badhwars. While the plaintiffs agree that it is admirable that Ms. Sharma agreed to help the Badhwars, that does not mean that she is entitled to be paid for her kindness to them. The plaintiffs also note that Ms. Sharma has provided no insight into the number of hours she devoted to helping her in-laws.

[6] In their earlier responding cost submissions, the plaintiffs suggested that the appropriate legal standard to address the issue is that set out by the Court of Appeal in Girao v. Cunningham, 2021 ONCA 18. Those principles can be summarized as follows:

i. Costs should only be awarded to lay litigants who demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer;

ii. The party must have incurred an opportunity cost by foregoing remunerative activity;

iii. Costs orders should serve to dissuade misconduct in litigation and that a party faced with an unrepresented litigant should expect to pay costs in some amount, particularly where the unsuccessful party's trial tactics merit sanction; and

iv. Where there is little evidence of lost opportunity costs, an award is likely to be nominal.

[7] Here, the plaintiffs have pointed out that Ms. Sharma was likely acting without payment from the Badhwars. I nevertheless am of the view that Ms. Sharma should be compensated for her time on the same principle as self-represented litigants are.

[8] As noted, Ms. Sharma is the daughter-in-law of the Badhwars. It was abundantly clear that they needed help and were completely incapable of acting on their own behalf because of a fundamental lack of sophistication and in the case of Mr. Badhwar very limited English language skills and in the case of Mrs. Badhwar, no English to speak of.

[9] With respect to the issue of foregoing remunerative activity to help her parents-in-law, Ms. Sharma has served a paystub that shows income for the two weeks ending July 27, 2025 that reflects full-time employment. Unfortunately, that is of little assistance because it does not deal with the period of trial which was in June 2024.

[10] The issue of ensuring that some cost award is paid by an unsuccessful party to dissuade misconduct is, however, also relevant here. As set out in greater detail in the trial reasons, the Badhwars were accommodation guarantors to their son. They signed guarantees, a mortgage and a promissory note in favour of the plaintiffs. As set out in the trial reasons, the plaintiffs knew or ought to have known that the Badhwars were subject to undue influence by their son and that they were unable to read or understand the documents they were signing. The plaintiffs purported to correct this by having the Badhwars receive independent legal advice. The independent legal advice was fatally flawed.[1]

[11] Among other things, there was no reference to the promissory note in the certificate of independent legal advice nor was there any suggestion on the face of the certificate that the Badhwars were given any advice about the promissory note. This was a significant defect because the promissory note purported to establish a freestanding debt from the parents to the plaintiffs independent of the guarantee or any defences that might arise under it. In addition, although the certificate of independent legal advice referred to the guarantee, it did not indicate that any independent legal advice was given about the guarantee. The plaintiff nevertheless relied on the promissory note and the guarantee at trial.

[12] I do not say this critically of the plaintiffs or their counsel in the sense of taking them to task for misconduct or awarding elevated costs against them. I have not gone back to parse the trial transcript for the precise language the plaintiffs used in relation to the independent legal advice, nor do I have the resources to do so. It does, however, underscore the ready possibility that self-represented litigants can be taken advantage of and that cost awards can in some circumstances have some dissuasive effect.

[13] I am also mindful of the admonition by the Court of Appeal in Girao and Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 22 that "lump sum costs awards may be preferable in order to avoid transforming costs hearings into complex proceedings where the self-represented claimant is called upon to account for every minute of the day and prove every penny of revenue": Girao at para. 13; Benarroch at para. 18.

[14] Taking these factors into account, I note that Ms. Sharma spent three days at trial. While not a lawyer, she was effective in court. Three days in court would also have taken preparation of between 1 and 2 days for each day in court. I would also be inclined to award something for costs that the Badhwars paid to Mr. Robson or other lawyers that are not reflected in previous cost awards. Taking those factors together I fix costs in the Badhwars' favour at $15,000 on a partial indemnity scale, payable within 30 days.

Date: September 2, 2025

Koehnen J.

Footnote

[1] The issue of the contents of the certificate of independent legal advice was not raised by Ms. Sharma but was raised by the court during its deliberations. The court raised the concern with the parties and gave them an opportunity to respond.