Kemdirim v. Mahiagbe et al, 2026 ONSC 4553

Citation: KEMDIRIM v. MAHIAGBE et al, 2026 ONSC 4553

ENDORSEMENT OF CIVIL MOTION, APPLICATION OR CASE CONFERENCE

SHORT TITLE OF PROCEEDINGS: Kemdirim v Mahiagbe et al

COURT FILE NO.: CV-20-00083874-0000

BEFORE: Associate Justice Perron

COUNSEL: Stella Kemdirim, plaintiff, self-represented Chukwuyem Imahiagbe, defendant, self-represented

COSTS ENDORSEMENT:

1This cost endorsement follows the discontinuance of this action against all defendants on February 3, 2026.

2As set out in my endorsement of February 3^rd, the discontinuance arose from Ms. Kemdirim’s motion seeking an order for an extension of time to set the action down for trial under Rule 48.14. On or about January 9, 2026, before the return of the extension motion, Ms. Kemdirim uploaded a notice of motion on case center seeking to discontinue the claim as well as other relief. She also delivered a notice of discontinuance.

3The issues arising from the new notice of motion were discussed on February 3^rd and the action was ultimately discontinued on that day, with Ms. Kemdirim’s consent, subject to a dispute over costs.

4I have now had an opportunity to review the materials filed by Ms. Kemdirim and Mr. Imahiagbe with respect to costs. Ms. Kemdirim’s position is that no costs should be ordered. Mr. Imahiagbe seeks partial indemnity costs for the action in the amount of $11,919.28 inclusive of HST and disbursements, plus post-judgment interest.

5Pursuant to rule 23.05, any party to an action that is discontinued may, within 30 days, make a motion respecting costs of the action.

6The request for costs pursuant to rule 23.05 is subject to the court’s discretion pursuant to section 131 of the Courts of Justice Act and the consideration of the factors set out in rule 57.01.¹

7Amendments were made to rule 23.05 in 2009 that removed the previous provision providing a prima facie entitlement of a defendant to costs of a discontinuance. Under the former iteration of the rule, the court considered whether the action disclosed a “bona fide cause of action” and whether the plaintiff had filed evidence to justify the commencement of the action without engaging on speculation of what the ultimate determination on the merits would be.²

8Post-2009, whether a plaintiff had a bona fide claim at the outset of the action remains a factor that the court considers pursuant to the principles set out in subrule 57.01(f) (whether commencing the action was improper, vexatious or unnecessary) as part of the court’s exercise of its discretion in fashioning a cost award that is in the interest of justice.³

Is the Claim Against Mr. Imahiagbe bona fide or was it Improper, Vexatious or Unnecessary?

9The NCAO was dissolved in or around June 2025. The NCAO was unrepresented and did not make a claim for costs arising from the discontinuance. Mr. Imahiagbe is the only party that seeks costs therefore I must assess the factors through that lens.

10Neither party produced a copy of the pleadings as part of their cost submissions. I retrieved a copy of the claim and amended claim from the materials uploaded by Ms. Kemdirim to case centre in support of her extension motion. The relief sought in the prayer for relief is claimed against both defendants and includes aggravated, punitive and exemplary damages of $200,0000, a declaration that Ms. Kemdirim was wrongfully suspended as public relations officer on the NCAO Board, a request for a forensic audit of the NCAO’s accounts and relief arising from oppression.

11In essence, the claim pertains to a messy dispute between Ms. Kemdirim and the NCAO Board of which Mr. Imahiagbe was then president. Ms. Kemdirim alleges that her role as public relations officer was usurped by the Board and/or by Mr. Imahiagbe. The parties disputed the role of a PRO. The Board alleged that Ms. Kemdirim breached her confidentiality obligations. Ms. Kemdirim was suspended. She challenged her suspension and alleged she was defamed by the Board and by Mr. Imahiagbe.

12Based strictly on a reading of the amended claim, it is difficult to decipher the pleas made specifically against Mr. Imahiagbe. It is also not clear, based on the allegations in the claim, how Mr. Imahiagbe could bear personal liability for any of the claims separate and apart from any liability that he may face as a Board member.

13In her affidavit filed in support of her position on costs, Ms. Kemdirim’s evidence is that at the time she commenced the action, she believed the claim disclosed a valid and bona fide cause of action and that her belief was based on documentary material in her possession including written communications and formal complaint materials. Those documents were not attached to her affidavit. In her affidavit, Mr. Kemdirim does not specifically address the bona fide of her claim against Mr. Imahiagbe.

14The defendant does not address this factor in his responding materials except to deny that the claim advances any allegations of his personal wrongdoing and that all actions taken during his presidency were the collective decisions of the Board. He also highlights that post-2009, this factor is only one of the considerations in the determination of costs.

15Although I struggle to decipher the pleas and allegations supporting the constating elements of each cause of action as against Mr. Imahiagbe on a reading of the amended claim, based on the limited information before me on this costs determination, I am simply not in a position to determine whether the claim was bona fide or if it was improper or vexatious. In order to do so, I would require more evidence from each party as well as submissions on the constating elements of each cause of action and the pleas made in the claim.

16This is therefore a neutral factor in my determination on costs.

The Importance of the Issues

17I am satisfied that the issues raised in the pleadings, including reputational issues, were important to each party. Each of them takes this position in their materials.

The Amount Claimed, the Amount Recovered and Outcome of the Proceeding

18The amounts claimed were relatively significant and were at the then-threshold for rule 76 actions.

19However, given that the action was discontinued, I cannot conclude that the plaintiff was successful in the action. I agree with Mr. Imahiagbe that for all intents and purposes, he was the successful party because the action was discontinued by the plaintiff.

The Complexity of the Proceeding

20I do not consider that the proceeding was complex.

21The action did not progress past the pleadings stage. There were delays arising from the NCAO’s failure to return its motion seeking leave to be represented by a non-lawyer and from the plaintiff’s understanding of Associate Justice Fortier’s endorsements that the representation issue was a preliminary issue that needed to be addressed before moving the action forward.

22Other than case conferences to deal with the pleadings, NCAO’s representation and the timetable for next steps, there was one substantive motion to deal with the extension of time for the action.

23The extension of time was opposed by Mr. Imahiagbe. The motion did not raise complex issues although it did require that both remaining parties deliver materials to address the chronology of events and provide evidence on the factors that the court considers on such motions.

The Conduct of any Party that Tended to Shorten or Lengthen Unnecessarily the Duration of the Proceeding

24Each party attempts to attribute delay to the other party in this action and/or justify any delay that might lie at their own feet. I do not think it is appropriate or necessary to engage in a deep dive of the events of this file to determine who might be most responsible for any delays.

25That said, I find it concerning that the NCAO did not take steps to finalize its representation motion in 2022. However, I am also concerned that Ms. Kemdirim did not take steps to move the action forward based on her understanding of Associate Justice Fortier’s endorsement of May 9, 2022.

26As set out in my endorsement from the case conference held before me on September 15, 2025, Ms. Kemdirim contacted the Court in early June to schedule an urgent motion seeking to extend the time to complete the remaining steps in the action and set it down for trial. The NCAO’s counsel indicated that he had not been able to get instructions for several years and would need to get off record.

27At the conference on September 15^th, the NCAO’s past president, Efe Omueti, appeared to indicate that the NCAO had recently been dissolved. The NCAO’s counsel conducted an online search during the conference and found the NCAO’s Certificate of dissolution dated June 13, 2025.

28The potential effect of NCAO’s dissolution was discussed and the parties were encouraged to seek legal advice. The plaintiff was to consider the impact of the dissolution on next steps. However, the plaintiff had previously scheduled a motion for November 25^th to seek the required extension, among other relief. To avoid further delays in this matter, I ordered a timetable for the exchange of materials on the motion.

29On November 25^th, an issue arose with service of the responding materials and I adjourned the motion to February 3, 2026. To avoid any further issues, I also ordered that Mr. Imahiagbe re-serve his responding materials by November 28^th to Ms. Kemdirim’s new email address. I ordered that Ms. Kemdirim deliver her reply materials by January 9, 2026.

30The above events are particularly relevant because the majority of costs claimed in the action by Mr. Imahiagbe relate to his costs in dealing with the extension motion. Because Ms. Kemdirim only served her notice of discontinuance on January 9, 2026, the responding materials on the extension motion had already been prepared.

31Mr. Kemdirim states that she delivered the discontinuance after careful consideration of proportionality, litigation risk, cost exposure and the practical utility of continuing the litigation. She also says the discontinuance reflects a responsible effort to avoid further consumption of court resources and additional expense to all parties.

32The challenge that Ms. Kemdirim faces with respect to costs is that she came to the above realization only after she had prepared her motion materials and after the responding materials were delivered. She has not explained why it took her until January 2026 to come to the conclusion that she wanted to discontinue the action when it was known to her at least since September 15^th that the NCAO was dissolved.

33I do not wish to discourage parties from taking the decision not to pursue litigation on further reflection—and more parties should consider the factors that led to Ms. Kemdirim’s decision. However, as the saying goes, “timing is everything”. In this case, the timing of Ms. Kemdirim’s decision to discontinue the claim is a significant factor when determining whether costs should be awarded.

The Principle of Indemnity and the Costs Sought

34Based on his costs outline, Mr. Imahiagbe seeks partial indemnity costs for his time as a self-represented litigant in the amount of $2,520 based on a daily rate of $700 (or $100 per hour). He did not keep track of his time spent dealing with this matter but states that he missed work and attended court on 6 days between February 2022 and February 2026.

35Mr. Imahiagbe is self-represented since January 2022. He does not seek any costs incurred by him or the NCAO with respect to their former counsel’s retainer. That said, Mr. Imahiagbe is seeking partial indemnity costs of counsel who assisted him as a self-represented party in the amount of $8,317.95 plus HST.

36Mr. Imahiagbe has produced two invoices in support of his claim for his counsel’s costs. The time spent by counsel and an articling student relates to work on the extension motion from mid-september 2025 up to the attendance before me on February 3, 2026 and for work dealing with the preparation of responding materials on costs. The total time spent by counsel is 12 hours and the total time spent by the articling student is approximately 52 hours. The total amount of both invoices is $15,665.47 with approximately $10,250 of that time being allocated to the work of the articling student.

37Although I recognize counsel’s attempt to be cost effective by allocating most of the work to an articling student, the time spent by the articling student—more than one week of full time work—is somewhat disproportionate to the complexity of the motion. There must also be some amount of duplication between the student’s time and counsel’s as well as some learning time to factor into the student’s time.

38I do not think it is appropriate in the circumstances that Mr. Imahiagbe be compensated for his personal time spent dealing with this action. Three of the six days for which he seeks to be compensated a daily rate predate the extension motion. For the remaining three days, it is not clear whether there might duplication or overlap between the costs he personally claims and those of counsel. In any event, I do not think it would be appropriate to award costs for his time in the absence of particulars of the time he actually spent dealing with the matter, particularly because he is also seeking costs for his counsel’s time.

39I do not agree with Ms. Kemdirim that Mr. Imahiagbe cannot seek his counsel’s costs because counsel was not on record. Ms. Kemdirim also asserts that “Courts distinguish between formal legal representation and information support provided to a self-represented party” and that only the former may ground a claim for counsel fees. Ms. Kemdirim has not identified any caselaw that supports this assertion and she would be hard-pressed to find one.

40Parties engage counsel in limited retainers all of the time and this phenomenon is bound to be increasingly more common due to the rising costs of litigation. The fact that counsel is not on record does not prevent a party from seeking recovery of any costs incurred such as those to obtain legal advice in the background or to assist with preparing written materials.

41It is correct that Mr. Imahiagbe has not produced a copy of a retainer agreement or evidence that he has paid the fees. It would have been preferable for counsel to prepare a short affidavit or separate costs outline to certify that the hours claimed had been spent and that the rates shown were correct, but I do not think that failure to do so is fatal to Mr. Imahiagbe’s claim for costs. He has produced an affidavit where he confirms that he incurred legal fees to respond to the extension motion and attaches a copy of the invoices to his affidavit. Contrary to Ms. Kemdirim’s assertion, there is therefore some evidence before me that these costs were incurred.

42I agree with Mr. Imahiagbe that Ms. Kemdirim has not provided sufficient evidence that her financial circumstances should be a factor that weighs significantly in my assessment.

Offers to Settle

43On September 2, 2020, Mr. Kemdirim made an offer to withdraw her claim if the parties agreed to a settlement which included, among other things, a declaration that she was wrongfully suspended from her public relations officer position on the NCAO’s Board and that the NCAO cease undertaking her duties and stop interfering with her mandate.

44On October 2, 2020, Mr. Imahiagbe and the NCAO offered to dismiss the action in exchange of a full and final mutual release. If accepted before October 9, 2020, no costs would be payable by either party for the action. If accepted after October 9, 2020, the defendants claimed their costs to be agreed upon or assessed.

45On November 6, 2025, Ms. Kemdirim made another offer to settle which provided for the dismissal of the action without costs in exchange for a declaration that she was wrongfully suspended and a public apology by the defendants for having defamed and harassed her.

46None of these offers match the end result of the discontinuance of the proceeding. However, the closest outcome by comparison is the offer made by the defendants on October 2, 2020.

47If the offer had been accepted and the action dismissed back in October 2020, none of the costs claimed by Mr. Imahiagbe would have materialized.

Conclusion

48I find that it is reasonable and just that Mr. Imahiagbe is entitled to some costs for responding to the extension motion and dealing with the issue of costs.

49Pursuant to my analysis of the general principles and factors set out above, I conclude that costs in the all-inclusive amount of $5,000 plus post-judgment interest in accordance with the Courts of Justice Act are appropriate. Those costs shall be payable by the plaintiff to Mr. Imahiagbe within 30 days.

Date: July 30, 2026

Justice Perron*

*this matter was heard by me in my capacity as an Associate Judge

Footnotes

1. 1Enerworks Inc. v Glenbarra Energy Solutions Inc., 2016 ONSC 4291 at para 12.
2. 2Enerworks at para 13.
3. 3Enerworks at paras 14-15.