



COURT OF APPEAL FOR ONTARIO

CITATION: Misir v. Misir, 2017 ONCA 810

DATE: 20171023

DOCKET: C62436 & C63026

Pepall, van Rensburg and Trotter JJ.A.

BETWEEN

Randy Misir

Plaintiff (Respondent in Appeal)

and

Geree Misir and Rajendra Narine (a.k.a. Hardial
    Singh)

Defendants (Appellants)

AND BETWEEN

Randy Misir

Applicant (Respondent in Appeal)

and

Geree Misir and Rajendra Narine (a.k.a Hardial
    Singh)

Respondents (Appellants)

David Reiter, Selwyn Hicks and Brian Chung, for the
    appellants

Abba Chima, for the respondent

Heard: August 18, 2017

On appeal from the order of Justice Edward M. Morgan of
    the Superior Court of Justice, dated July 19, 2016 and the order of Justice
    Peter J. Cavanagh of the Superior Court of Justice, dated November 23, 2016.

COSTS ENDORSEMENT

[1]

The appellants were successful on appeal. The
    result was that an order reinstating a default judgment and an order permitting
    the sale of certain property, were set aside. The appellants seek costs of the
    appeal and the proceedings in the court below.

[2]

The appellants were self-represented throughout
    the proceedings, until a few months before the appeal was argued, and they
    obtained leave to deliver a fresh as amended notice of appeal, and a
    supplementary factum and other materials were also filed.

[3]

As we noted in our reasons allowing the appeal,
    the record [was] voluminous and contained affidavits from the parties with
    contradictory accounts of misconduct and subterfuge on all sides in connection
    with the litigation. Ultimately it was unnecessary for this court to attempt
    to reconcile the conflicting accounts. The appeal was allowed because of the
    respondents failure to make full and fair disclosure of material facts (concerning
    the appellants alleged default and participation in the action) when he and
    his then counsel attended before the court without notice to the appellants,
    resulting in the reinstatement of a default judgment.

[4]

Although this ground was pursued in argument
    before us, the appellants focus, in their written materials, even after they
    retained counsel, was on challenging the factual findings in the court below
    (which would have required the demonstration of a palpable and overriding
    error).

[5]

Their claim for costs on a substantial or full
    indemnity scale has no basis, and the partial indemnity claim for costs (of
    almost $50,000) is excessive and disproportionate. The appellants own approach
    to the proceedings contributed in no small measure to unnecessary expense in
    the litigation and the appeal.

[6]

For these reasons, we award the appellants costs
    of $5,000 for the appeal, inclusive of disbursements and applicable taxes, and
    no costs in the Superior Court proceedings.

[7]

Finally, the sum of $19,430 that was paid into
    court by the appellant pursuant to the order of Huscroft J.A. dated January 9,
    2017, and filed as Account No. 544198, shall be released to the appellant
    forthwith.

S.E.
    Pepall J.A.

K.
    van Rensburg J.A.

G.T.
    Trotter J.A.


