



COURT OF APPEAL FOR ONTARIO

CITATION: Extreme Venture Partners Fund I LP v. Varma, 2022
    ONCA 57

DATE: 20220121

DOCKET: C67057, C67062, C67364 & C67376

Hourigan, Huscroft and Coroza JJ.A.

BETWEEN

DOCKET:
    C67057

Extreme Venture Partners Fund
    I LP, EVP GP Inc.,

Ravinder Kumar Sharma,
    Imran Bashir and Kenneth Teslia

Plaintiffs/Defendants by Counterclaim

(Respondents)

and

Amar
    Varma
,
Sundeep Madra
,
Varma Holdco Inc.
,

Madra
    Holdco Inc.
,
Chamath Palihapitiya
,
El Investco I Inc.
,

Extreme Venture Partners
    Annex Fund I LP, and EVP GP Annex Fund I Inc.

Defendants/
Plaintiffs by Counterclaim

(
Appellants
/
Respondents
)

AND BETWEEN:

DOCKET:
    C67062

Extreme Venture Partners Fund
    I LP, EVP GP Inc.,

Ravinder Kumar Sharma,
    Imran Bashir And Kenneth Teslia

Plaintiffs/Defendants by Counterclaim

(Respondents/Appellants by Cross-Appeal)

and

Amar
    Varma
,
Sundeep Madra
,
Varma Holdco Inc.
,

Madra
    Holdco Inc.
, Chamath Palihapitiya, El Investco I Inc.,

Extreme Venture Partners Annex
    Fund I LP,

EVP GP Annex Fund I Inc.,
    Cassels Brock & Blackwell LLP, and

Seven Hills Group LLC

Defendants/Plaintiffs by Counterclaim

(
Appellants
/
Respondents by Cross-Appeal
)

AND BETWEEN:

DOCKET: C67364

Extreme Venture Partners Fund
    I LP, EVP GP Inc.,

Ravinder Kumar Sharma,
    Imran Bashir And Kenneth Teslia

Plaintiffs/Defendants by Counterclaim

(Respondents)

and

Amar
    Varma
,
Sundeep Madra
,
Varma Holdco Inc.,

Madra
    Holdco Inc.
, Chamath Palihapitiya, El Investco I Inc.,

Extreme Venture Partners Annex
    Fund I LP,

EVP GP Annex Fund I Inc.,
    Cassels Brock & Blackwell LLP, and

Seven Hills Group LLC

Defendants/Plaintiffs by Counterclaim

(
Appellants
)

AND BETWEEN:

DOCKET:
    C67376

Extreme Venture Partners Fund
    I LP, EVP GP Inc.,

Ravinder Kumar Sharma,
    Imran Bashir And Kenneth Teslia

Plaintiffs (Respondents)

and

Amar Varma, Sundeep Madra,
    Varma Holdco Inc.,

Madra Holdco Inc.,
Chamath Palihapitiya
,
El Investco
    I Inc.
,

Extreme Venture Partners Annex
    Fund I LP,

EVP GP Annex Fund I Inc.,
    Cassels Brock & Blackwell LLP, and

Seven Hills Group LLC

Defendants (
Appellants
)

Jonathan Lisus, Crawford Smith, Nadia Campion, Vlad
    Calina and John Carlo Mastrangelo, for the appellants Amar Varma, Sundeep
    Mandra, Varma Holdco Inc. and Madra Holdco Inc.

Andrew Brodkin, David E. Lederman and Daniel Cappe, for
    the appellants Chamath Palihapitiya and El Investco 1 Inc.

Won J. Kim, Megan B. McPhee, Aris Gyamfi and Rachael
    Sider, for the respondents

Heard: in writing

On appeal from the orders of Justice Barbara A. Conway of
    the Superior Court of Justice, dated May 14, 2019, July 24, 2019, and February
    4, 2020, and the judgment of Justice Barbara A. Conway of the Superior Court of
    Justice, dated May 14, 2019.

ENDORSEMENT

[1]

On December 1, 2021 we released Reasons for Decision wherein the
    Respondents − Extreme Venture Partners Fund I LP, EVP GP Inc., Ravinder Kumar
    Sharma, Imran Bashir, and Kenneth Teslia − were successful in resisting
    an appeal commenced by Amar Varma and Sundeep Madra, along with their
    respective holding companies, Varma Holdco Inc. and Madra Holdco Inc (Madra
    Holdco), collectively the "Varma/Madra Appellants." They were also successful
    on the appeal commenced by Chamath Palihapitiya and his holding company, El Investco
    1 Inc. collectively the Palihapitiya Appellants. In addition, the Respondents
    succeeded on their cross-appeal.

[2]

We invited the parties to make written submissions on the issue of costs
    if they were unable to reach an agreement. All parties filed written
    submissions and on January 6, 2022 we awarded the Respondents their costs of
    the appeals in the total amount of $300,000. The Palihapitiya Appellants and
    Varma/Madra Appellants were each ordered to pay $150,000 of the total costs
    award.

[3]

On January 10, 2022, counsel for the Respondents wrote to the court and sought
    a variation of the trial costs award. Counsel submitted that because his
    clients succeeded on their cross-appeal, they beat their Rule 49 settlement
    offer and were entitled to a costs award on a higher scale:
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194. Counsel for the Palihapitiya Appellants,
    writing on behalf of all the appellants, opposed the request.

[4]

Even assuming we have the authority to vary our decision, we decline to
    do so. The Respondents did not appeal or seek leave to appeal the trial costs,
    even though they knew that they would beat their Rule 49 settlement offer if
    they succeeded on their cross appeal:
Rules of Civil Procedure
. Further,
    the Respondents did not include a request to vary the trial costs award in
    their notice of cross-appeal or in their supplementary notice of cross-appeal. Finally,
    the Respondents did not raise the issue in oral argument or in their written
    submissions on costs.

[5]

The request for a variation is denied.

C.W. Hourigan J.A.

Grant Huscroft J.A.

S. Coroza J.A.


