Court File and Parties

Court File No.: CV-24-00732187
Date: 2025-02-05
Court: Superior Court of Justice - Ontario

Applicant: Parkland Corporation

Respondents:
16408117 Canada Inc., Mian Abubaqr, Caledon Fuels Inc., Numberdar Holdings Inc., Narinder Khasria, Loroy LLP, Imran Akram, Ahmed Inam, Masud Raja, Peak Prime Realty Inc., and Tahir Mehmood a.k.a. Tahir Mehmood Raja

Before: William N. Schabas

Counsel:

• Brendan Jones and Arthur Zask, for the Applicant
• Jonathan Rosenstein, for 16408117 Canada Inc. and Mian Abubaqr
• Evan Moore and Patrick Abbott, for Caledon Fuels
• Howard Gerson, for Numberdar Holdings Inc. and Narinder Khasria
• Michael Lauricella, for Loroy LLP, Imran Akram and Ahmed Inam

Heard: In writing

Costs Endorsement

[1] On January 9, 2025, I released Reasons granting interlocutory relief sought by the Applicant Parkland Corporation ("Parkland"): Parkland Corporation v. 16408117 Canada Inc. et al., 2025 ONSC 201. I noted that this was the second proceeding in which the Respondent Caledon Fuels Inc. (“Caledon”) had attempted to get out of a lease agreement, its first effort having been stopped by Papageorgiou J. in April 2024: Parkland Corporation v. Caledon Fuels Inc., 2024 ONSC 2361.

[2] The Applicant was entirely successful and now seeks costs on a substantial indemnity basis in the amount of $109,1009.88, which includes HST and disbursements. Alternatively, Parkland seeks partial indemnity costs of $79,140.92, also including HST and disbursements. The costs are sought against Caledon, 16408117 Canada Inc. (“164”), Mian Abubaqr, Numberdar Holdings Inc. (“Numberdar”), and Narinder Khasria.

[3] The Applicant relies on the misconduct of the Respondents who “tried to ‘steal a march’ by unilaterally attempting to change the status quo before Parkland could get into court.” As I noted in my reasons, there were, as some Respondents acknowledged, “badges of fraud” in the conduct by some of the Respondents. Further, there appears to have been delayed, and limited, compliance with my Order as the gas station continued to receive and sell Canco fuel for over a week following January 9, 2025.

[4] The Respondents argue that the costs should be deferred to the judge hearing the balance of the application or, alternatively, that costs should not be awarded on a substantial indemnity basis. They also take issue with the quantum, arguing that the Applicant essentially presented its Application on the motion. Some of the Respondents against whom costs are sought attempt to minimize their involvement in the actions to remove Parkland.

[5] Under the Courts of Justice Act, s. 131(1), there is broad discretion in determining costs. Rule 57.01(1) lists factors to be considered. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances: Boucher v. Public Accountants Council for Ontario. The Court should also have regard to the principle of proportionality (Rule 1.01(1.1)) and seek to balance the indemnity principle with the objective of facilitating access to justice.

[6] In my view, costs should not be deferred to the judge hearing the application. This Court has adopted a practice of making costs awards as matters proceed. While I agree that costs of an interlocutory injunction motion are often reserved until the final disposition of the proceeding [1], there are cases in which it is appropriate to order costs at this stage, and this is one of them. This is the second attempt by Caledon to get out of this lease. These actions were taken in the face of the Order of Papageorgiou J. who sought to preserve the status quo of the lease. I note she awarded costs to the Applicant which, I am advised, have not been paid.

[7] One purpose of costs is to influence behaviour of litigants. The behaviour of several of the Respondents needs that influence. Ultimately, if the full Application is heard and the Respondents are successful, a judge may consider my costs award in determining an appropriate amount to award at that stage.

[8] I am not satisfied, however, that the Respondent’s conduct warrants costs on a substantial indemnity basis. The evidence on the motion, as I found, discloses badges of fraud and raises questions about the conduct of all of the Respondents against whom costs are sought. But I went no further in finding actual misconduct or any “reprehensible, scandalous or outrageous conduct” [2] which would give rise to an elevated award. Accordingly, costs shall be on a partial indemnity scale.

[9] The Respondents’ complaints about the quantum are unpersuasive. The Applicant had to conduct extensive investigation in order to bring this motion, which was brought on an urgent basis. Many parties had to be included. The documents were extensive and several witnesses were involved. It is to be expected that the many Respondents’ individual costs would be lower, although taken together they are considerably higher than the Applicant’s costs. In my view, the costs sought are reasonable and are within the range of costs that the Respondents would have expected to pay.

[10] Finally, I agree that the costs should be awarded against all of the Respondents named by the Applicant. These Respondents acted in concert to reach the result sought by Caledon and Mr. Chaudhary. If the Respondents feel costs should be apportioned between them they can work that out themselves.

[11] Accordingly, costs should be awarded to the Applicant of $79,140.92, payable forthwith by the Respondents Caledon, 164, Mian Abubaqr, Numberdar and Narinder Khasria. No costs were sought against the other Respondents, and no costs are ordered against them.

William N. Schabas
Date: February 5, 2025

Notes

[1] See, e.g., Parkland Corporation v. 2615669 Ontario Inc., 2024 ONSC 3724 at para. 46.

[2] Davies v. Clarington (Municipality) et al., 2009 ONCA 722 at paras. 28-31.