Court File and Parties

Court File No.: CV-23-0028 Date: 2025-09-12 Ontario Superior Court of Justice

Between:

Stephanie Kelly-Pichette and Kyle Pichette, Plaintiffs

– and –

13941281 Canada Inc. and Realty Leaders Inc. c.o.b. as Royal Lepage Northern Realty Leaders, Brokerage, Defendants

Counsel:

• Kimberly Kenney, counsel for the Plaintiffs (Responding Party)
• Raj Parmar, representative for the Defendant, 13941281 Canada Inc. (Moving Party)
• No-one appearing for the Defendant, Realty Leaders Inc. c.o.b. as Royal Lepage Northern Realty Leaders, Brokerage

Heard: September 11, 2025

Decision on Motion

Cullin, J.

Overview

[1] This matter appeared before me in motions court. The defendant, 13941281 Canada Inc. (the "defendant"), has brought a motion seeking to amend its statement of defence to add a counterclaim against the plaintiffs, counsel for the plaintiffs, and the reporting service that conducted the examinations for discovery in this action. The motion is opposed by the plaintiffs.

[2] The defendant, Realty Leaders Inc. c.o.b. as Royal Lepage Northern Realty Leaders, Brokerage ("Royal Lepage"), takes no position on the motion. The reporting service, Aries Court Reporting ("Aries"), did not appear on the motion, however its principal, Kathy Porritt, filed an affidavit in support of the plaintiffs' position in opposing the motion.

[3] The motion was originally brought in writing, but was returned by Justice Tremblay as the motion materials were not in compliance with the Rules of Civil Procedure. The plaintiffs subsequently opposed the defendant's request to proceed with the motion in writing. As a result, the plaintiff and the defendant appeared today for oral argument.

[4] For the reasons given below, the defendant's motion is denied.

Factual Overview

The Action

[5] This is a relatively straightforward action that arises from a failed real estate transaction between the plaintiffs and the defendant (collectively "the parties").

[6] On April 11, 2022, the parties entered into an Agreement of Purchase and Sale (the "APS") with respect to a property in Timmins. The plaintiffs were the vendors, and the defendant was the purchaser. Pursuant to the APS, the defendant paid a $10,000.00 deposit in trust to Royal Lepage. The transaction was subsequently not completed.

[7] The plaintiffs have commenced this proceeding seeking damages against the defendant including forfeiture of the deposit, carrying costs pending an eventual sale, and recovery of the difference in the sale price.

[8] Royal Lepage is a party to the proceeding because it continues to hold the deposit funds. It has not filed a statement of defence. It is not clear from the court file whether it has taken any steps to pay the money into court in order to have the claim against it discontinued. Regardless, it is not actively involved in the litigation.

[9] The defendant is represented by its sole director, Raj Parmar, pursuant to the Order of Justice Tremblay, dated January 16, 2024. Mr. Parmar is not a lawyer.

[10] Pursuant to a consent timetable, the parties have completed examinations for discovery and a pretrial conference. They will be proceeding to a summary trial.

The Motion

[11] The defendant brings this motion seeking to amend his statement of defence to advance counterclaims for the following:

a. Against the plaintiffs and their counsel for:

i. Misrepresenting to the court and the defendant that they had delivered key documents, resulting in delays in the proceeding;

ii. Failing to comply with court orders, resulting in delays and additional costs in the proceeding; and,

iii. Failing to consult the defendant when scheduling examinations for discovery, and unilaterally directing how the reporter's fees would be billed for the discovery.

b. Against Aries for:

i. Colluding with opposing counsel and misusing public information by improperly issuing the defendant's bill for the examination for discovery in the name of its director, Raj Parmar.

[12] The defendant seeks to advance causes of action for fraudulent misrepresentation, civil conspiracy, conspiracy to commit fraud, abuse of process, invasion of privacy, negligence, breach of duty, aiding and abetting misconduct and misuse of public information, vicarious liability, and breach of court order. He seeks general damages, mental distress damages, and punitive damages.

The Law

[13] Pursuant to r. 26.01 of the Rules of Civil Procedure, "On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment."

[14] The threshold to amend a pleading is low. The Court of Appeal has held that leave to amend a pleading should only be denied, "in the clearest of cases": Piedra v. Copper Mesa Mining Corporation, 2011 ONCA 191, para. 94. Notwithstanding the low threshold, however, a proposed amended pleading must set out a legally tenable cause of action: Thunder Bay Multi-Trades Inc. v. Hupe Manufacturing Ltd., 2021 ONSC 1316, at para. 23.

[15] In determining whether to grant leave, the court may consider the purpose that would be served by the amendment: Piedra v. Copper Mesa Mining Corporation, para. 93.

Analysis

[16] This motion seeks to address two separate grievances of the defendant and its representative, Mr. Parmar. First is the allegation that the plaintiffs' counsel misrepresented that she served a document on the defendant by regular mail on July 23, 2024. Second is the allegation that the plaintiffs' counsel unilaterally scheduled discoveries and then colluded with Aries to bill the defendant's representative personally for one-half of its invoice for conducting the discovery.

[17] Neither of these grievances is properly the subject of a counterclaim.

[18] A misrepresentation by counsel that they served a document on a party to an action does not give rise to an independent cause of action. At best, it may raise issues regarding the admissibility of the document in the action or may result in costs sanctions at the conclusion of the action. It is not necessary for me to determine those issues in disposing of this motion, and I make no findings regarding this allegation by the defendant.

[19] The issue arising from the examination for discovery is an issue between Mr. Parmar personally and Aries. Mr. Parmar takes issue with the fact that he was invoiced personally for the discovery, or at all. It is his position that, if any invoice was to be issued, it should have been issued to the defendant. He argues that his personal privacy was breached in the process.

[20] Mr. Parmar is not a party to this action and the defendant has no standing to advance a personal cause of action on his behalf. If Mr. Parmar takes issue with how he was invoiced, a counterclaim in this proceeding is not the appropriate process by which to address it.

[21] Even if the defendant did have standing, the next procedural hurdle is the fact that neither the plaintiffs' counsel nor Aries are parties to this proceeding. A counterclaim would not be the appropriate pleading by which to advance claims against them.

[22] Even if the defendant had standing and the plaintiffs' counsel and Aries were proper parties to a counterclaim, in my view the facts plead by Mr. Parmar do not support the causes of actions he has advanced. It is undisputed that:

a. The parties are involved in litigation and undertook examinations for discovery pursuant to a consent timetable.

b. Both the plaintiffs and the defendant elected to conduct oral examinations for discovery.

c. Mr. Parmar as the defendant's representative served a Notice of Examination and conducted the examination for discovery.

d. Aries was the reporting service that conducted the oral examination pursuant to Rule 34.02.

[23] Aries was entitled to issue invoices for its rendered services, and there was nothing negligent, fraudulent, or privacy-breaching about the manner in which it did so. The plaintiffs' counsel had no role in the invoicing other than to suggest to Aries that it be split equally.

[24] If Mr. Parmar takes issue with the amount he was invoiced or his personal liability for the invoice, that is a collection issue between himself and Aries or between himself and the defendant that he is representing. If collection proceedings are commenced, he can advance his arguments as a defence or counterclaim in that proceeding. It is not an issue for a counterclaim in this proceeding.

[25] In the circumstances, I find that the proposed counterclaim does not advance any legally tenable causes of action and the defendant's motion is denied.

Costs

[26] The court's ability to award costs is conferred upon it pursuant to s.131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Although awarding costs is discretionary, in civil actions the Court is guided in its exercise of discretion by the Rules of Civil Procedure.

[27] With respect to motions, pursuant to r. 57.03, the successful party is entitled to an award of costs, absent circumstances that would support a finding that another order would be more just.

[28] As a general practice, costs are awarded having regard to the principle of indemnity; that is, they are payable to the successful party by the unsuccessful party. Other factors to be considered by the court include: (i) the amount claimed and recovered in the proceeding; (ii) the complexity of the proceeding; (iii) the importance of the issues; (iv) the conduct of the parties; and, (v) whether any step was improper, vexatious or unnecessary.

[29] An award of costs must reflect an amount that is fair and reasonable having regard to the individual circumstances of a case: Boucher v. Public Accountants Council (Ontario). Costs are intended to indemnify a successful party for the expense of being compelled to seek the assistance of the Court to resolve a dispute: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, paras. 19-21.

[30] Costs are ordinarily awarded on a partial indemnity basis however, in appropriate circumstances, the court can exercise its discretion to award costs on a substantial or full indemnity scale. Such circumstances include a party's abusive conduct in a proceeding, advancing proceedings which are devoid of merit, or unnecessarily escalating the costs of litigation: Net Connect v. Mobile Zone, 2017 ONSC 1097, at paras. 11-18.

[31] Full indemnity costs are awarded only in exceptional circumstances and usually require the presence of reprehensible, scandalous, or outrageous conduct. Unsubstantiated allegations of dishonesty, illegality, and conspiracy have been identified as circumstances supporting an award of full indemnity costs: Baryluk (Wyrd Sisters) v. Campbell, at para. 10.

[32] The plaintiffs were wholly successful on this motion. They have submitted a Bill of Costs seeking full indemnity costs in the amount of $4,774.25.

[33] In my view, at its core, this is a motion that arose from Mr. Parmar's displeasure at being issued an invoice for $223.17 for reporting services. It is a frivolous motion to which the plaintiffs and Aries should not have been required to respond. It escalated the plaintiffs' costs of the litigation. It raised serious and unwarranted allegations of fraud and conspiracy against plaintiffs' counsel and Aries.

[34] I find that this is one of the rare cases in which exceptional circumstances exist and an award of full indemnity costs is appropriate. The defendant will therefore be ordered to pay costs to the plaintiffs in the amount of $4,774.25.

Disposition

[35] For the reasons given, I make the following orders:

1. The motion of the defendant, 13941281 Canada Inc., seeking to amend its pleadings to add a counterclaim against the plaintiffs, counsel for the plaintiffs, and Aries Court Reporting, is hereby dismissed.

2. The defendant shall pay full indemnity costs to the plaintiffs in the amount of $4,774.25. These costs shall be payable forthwith.

The Honourable Madam Justice K.E. Cullin

Released: September 12, 2025