Court File and Parties

Court File No.: CV-17-00004126-00 Date: 2025-10-01

Superior Court of Justice – Ontario 7755 Hurontario Street, Brampton ON L6W 4T6

Re: Roland Foch, Frank Foch by his Estate Trustee Ida Foch, applicants

And: Sharon Gun Club, The Gun Club (Sharon) Limited, Sharon Recreation Properties Ltd., respondents

Before: Justice L.B. Stewart

Counsel:

• Michael Gayed, for the applicants (Email: mike@gayedlaw.com)
• P. Ian Katchin, for the respondents (Email: ikatchin@foglers.com)

Heard: In Writing

COSTS DECISION ARISING FROM APPLICATION

Introduction

[1] This costs decision relates to an application for wide-ranging relief, including oppression remedies, against the respondents.

[2] By reasons dated July 14, 2025, the application was dismissed, and costs deadlines were provided.

[3] The parties failed to agree on costs.

Positions of the Parties

[4] There were no costs offers.

[5] The respondents seek full indemnity costs of $273,584.40. In the alternative, the respondents seek substantial indemnity costs ($242,288.11) or partial indemnity costs ($181,469.01).

[6] The applicants submit that a fair and reasonable costs award would be a partial indemnity award of $60,000.

Costs Generally

[7] As the successful party, the plaintiff is presumptively entitled to costs.

[8] Costs must be proportionate to the issues in the action and the outcome, and fair and reasonable, considering all of the circumstances.

[9] In fixing costs, r. 57.01 provides that the court may consider the following factors (in addition to the outcome of the case and any offers made):

• 0.a. principle of indemnity, including experience of successful counsel and their rates;
• 0.b. amount of costs that an unsuccessful party could reasonably expect to pay for the step in the proceeding;
• a. amount claimed and amount recovered;
• b. apportionment of liability;
• c. complexity of proceeding;
• d. importance of issues;
• e. conduct of any party that shortened or unnecessarily lengthened the proceeding;
• f. whether any step was improper, vexatious, or unnecessary, or taken through negligence, mistake, or excessive caution;
• g. a party's denial or refusal to admit something that should have been admitted;
• h. whether there was a multiplicity of proceedings;
• h.1. whether a party unreasonably objected to proceeding virtually; or
• i. any other relevant matter.

Proper Scale of Costs

[10] I find that there is a basis for elevated costs in this case. The applicants have been pursuing litigation against the respondents since 2011. The application was dismissed in its entirety for reasons including:

• a. The applicants having no standing against two of the three respondents;
• b. The application is barred by prior litigation and settlement agreements;
• c. The application is statute barred;
• d. There is no evidence that Sharon Gun Club (SGC) is operating "illegally";
• e. There is no evidence that the finances of the respondents are improper; and
• f. There is no basis for an oppression remedy.

[11] The last three points are of particular note in the costs analysis. Despite the court's findings, the applicants continue to assert in their costs submissions that this "application demonstrated the significant shortcomings in the governance of the respondents, their operations and their record keeping". The court found the opposite.

[12] The applicants then submit: "[t]his included concerns with shares issued by SRPL to Frank Foch which SRPL itself could not explain", despite the fact that the parties agreed about the ownership of the shares (and this agreement was openly acknowledged during oral argument), the applicant pursued the argument in the application.

[13] The applicants correctly note that they had some success on the application in that they obtained documents such as shareholder lists and other corporate and financial documents. However, the applicants ignore two important factors:

• a. These documents were obtained in the years prior to the application being heard. The applicants had no success on the issues before the court when the application was heard.
• b. While the court accepts that the documents obtained by the applicants were important to them, the documents and information obtained were a small fraction of the relief sought in this case.

[14] Taking into account all of the circumstances of this case, I find that substantial indemnity costs are appropriate.

[15] Legitimate legal arguments which fail will not result in a finding of unreasonable conduct. The law is that elevated costs are warranted in only two circumstances: as a result of the operation of offers and where there is sanction-worthy behaviour by the losing party. There were no offers in this case. Substantial indemnity costs should only be ordered where there has been reprehensible, scandalous, or outrageous conduct on the part of one of the parties in the circumstances giving rise to the cause of action or in the proceedings.

[16] In this case, the applicants settled Small Claims Court litigation in 2015, refused to comply with the settlement, and then refused to comply with the enforcement order. This application was brought in breach of that enforcement order. Their positions on this application were unreasonable and unsupported by evidence.

[17] The applicants argue (in their costs submissions) that this was simply a case of the applicants not agreeing with the manner of operations of the respondents. That does not accord with the findings of the court. This case was much broader than that:

• a. the applicants settled Small Claims Court litigation in 2015, refused to comply with the settlement, and then refused to comply with the enforcement order. This application was brought in breach of that enforcement order.
• b. the applicants asked the court to declare that the respondents were operating "illegally" and that those operations were so deficient that the court should set aside articles of amendment, cancel the issuance of shares, appoint an auditor, order tracing of funds, and permit the applicants unfettered access to all of the information about the respondents and their business dealings. In addition, the applicants asked the court to appoint a receiver, receiver/manager, or manager for the respondents. The court found that this case was a single-handed attempt by the applicant, Roland Foch, to take over the respondents. The court also found that this litigation was motivated by the applicants' animosity towards the respondents.

[18] All of these findings support an award of substantial indemnity costs against the applicants.

Proportionality

[19] Courts must consider proportionality in assessing costs. Costs must be fair and reasonable. However, proportionality should not be routinely invoked to save litigants from the actual costs of their proceedings in circumstances where those litigants have put forth a wholly unmeritorious defence to a legitimate claim or caused the proceeding to become unduly prolonged or complicated. Proportionality should be balanced against the other factors set out in r. 57.

[20] This proposition is equally applicable to applicants/plaintiffs who pursue unmeritorious claims.

Analysis of Bills of Costs

[21] The hourly rates of the lawyers staffing the file are appropriate. There were multiple lawyers, clerks, and articling students on the file. I disagree with the applicants that the number of lawyers leads inexorably to the conclusion that there was overstaffing. This litigation went on for eight years; there is bound to be some degree of overlap during that time. Further, a close reading of the bill of costs shows that the senior counsel without carriage of the file expended very few hours: the court could not find any record of hours by Mr. Kaplan; Mr. M. Davis accounts for 5.2 hours; and Mr. R. Davis accounts for 36.5 hours. The bulk of the work was done by the partner with carriage of the file, Mr. Katchin. There shall be a deduction for these 41.7 hours spent by other senior counsel.

[22] The delegation to junior lawyers, clerks, and students is appropriate. The hourly rates are within the market standards observed by this court.

[23] The applicants challenge the number of hours spent by the respondents, but in fact, the number of counsel hours are not far apart: 379.3 hours for the applicant versus 420.29 hours for the respondents. There is only a 10% difference. (The court relied on the totals provided by the applicants for this exercise. Even if these totals are not completely precise, the point stands).

[24] The applicants argue that there should be no costs awarded for the May 11, 2021 motion on refusals. The motion endorsement reflects counsel's agreement that there be no costs. I do not see costs for this motion in the respondent's bill of costs. Counsel for the respondents replied to a supplementary written question from the court on this issue and confirmed that the bill of costs excludes this motion.

[25] The applicants also argue that they should be awarded costs of the motion to restore the application to the trial list. The costs of that motion were reserved to the application (as the same judge heard the motion and the application). The applicants were successful on the motion and are entitled to their costs. The court awards $6,000 in costs to the applicants (inclusive of all fees, taxes, and disbursements) and has disregarded the costs sought by the respondents on this motion.

[26] The respondent's disbursements are @ 50% of the applicant's disbursements. The applicants only object to the respondent's disbursements for telephone and service of documents. The telephone disbursement is extremely small and appropriate; this application was started long enough ago that long distance charges were still a reality. The cost for service of documents ($770) appears to be within normal limits, but the applicant says that documents were not served personally. This disbursement will be deducted. All other disbursements are supportable.

Findings on Costs

[27] In view of the findings above, the court finds that reasonable and proportionate costs in this case are $169,000, broken down as follows:

• a. $167,500 in fees (inclusive of HST);
• b. $7,500 in disbursements (inclusive of HST);
• c. LESS $6,000 in costs to applicant;
• d. TOTAL: $169,000.

Personal Responsibility for Costs

[28] This litigation started in 2017. Roland Foch started the application on behalf of himself and as litigation guardian for his father, Frank Foch. Roland's litigation guardian affidavit (sworn September 20, 2017) discloses that Frank is a party under disability because he is incapable of managing property. In addition to acting as litigation guardian, Roland was the continuing guardian of property for Frank.

[29] In accordance with r. 7, Roland's litigation guardian affidavit confirms that he is personally responsible to pay the costs of Frank Foch should costs be awarded against Frank.

[30] Frank Foch died in August of 2018. This litigation was continued on behalf of his estate by his estate trustee.

[31] Roland is therefore personally responsible for all of the costs of this litigation up to August 2018. Roland and Frank's estate are jointly and severally liable for the costs of the litigation thereafter.

[32] The respondent's bill of costs discloses that @ 23% of the total substantial indemnity fees allowed by the court were incurred in 2017 and 2018. This percentage must be adjusted downwards to account for the fact that the cross examinations occurred after Frank's death. Recognizing that it is impossible to do an exact calculation, I find that 17.5% of the costs were incurred prior to Frank's death.

Orders Made

[33] The applicants shall pay costs in the amount of $169,000 to the respondents within 90 days.

[34] Roland Foch is personally liable for $29,575 of the total costs award. Roland Foch and the Estate Trustee for Frank Foch are jointly and severally liable for the remaining $139,425 of the costs award.

L.B. Stewart J.

Released: October 1, 2025

Footnotes

[1] Davies v. Clarington (Municipality) et al., 2009 ONCA 722, 100 O.R. (3d) 66, at paras. 29-31

[2] Krieser v. Garber, 2020 ONCA 699, 70 C.C.L.T. (4th) 40, at para. 137

[3] Aacurate v. Tarasco, 2015 ONSC 5980, 51 C.L.R. (4th) 314, at paras. 13-17