



COURT OF APPEAL
    FOR ONTARIO

CITATION: Sri Guru Nanak Sikh Centre Brampton v. Rexdale
    Singh Sabha Religious Centre, 2018 ONCA 459

DATE: 20180516

DOCKET: C64498

Lauwers, Benotto and Nordheimer JJ.A.

BETWEEN

Sri Guru Nanak Sikh
    Centre Brampton

Plaintiff (Respondent)

and

Rexdale Singh Sabha
    Religious Centre, a.k.a. Rexdale Singh Sabbha;

Sikh
    Spiritual Centre Toronto a.k.a. Sikh Spiritual Religious Centre
,

Defendants (
Appellant
)

Mark Wiffen, for the appellant

Pathik Baxi, for the respondent, Sri Guru Nanak Sikh Centre
    Brampton

Jordan Nussbaum, for the respondent, Rexdale Singh Sabha
    Religious Centre

Heard:  May 14, 2018

On appeal from the judgment of Justice Cynthia Petersen of
    the Superior Court of Justice, dated October 20, 2017 with reasons reported at
    2017 ONSC 6252.

REASONS FOR DECISION

[1]

The defendant, Sikh Spiritual Centre Toronto, appeals from the judgment
    of the motion judge refusing to set aside the consent order of Justice Mark
    Edwards dated February 4, 2016 that enforced a settlement between the parties. 
    At the conclusion of the hearing, we dismissed both the main appeal and the
    costs appeal with reasons to follow.  We now provide those reasons.

[2]

The action concerns three not-for-profit charitable corporations that
    operate Sikh Gurdwaras (Sikh temples) in the Greater Toronto Area. The action
    arose because of a default in repayment of monies loaned by the plaintiff
    temple to both defendant temples, one of which is the appellant.

[3]

In or around late 2015, all three parties entered into a settlement
    regarding re-payment of the loan monies, which was converted into a court order
    obtained on consent and dated February 4, 2016.

[4]

On November 3, 2016, the appellant brought a motion to set aside the
    settlement on the basis that the settlement was entered into without its authority. 
    Alternatively, the appellant submitted that the court should exercise its
    discretion not to enforce the settlement because it was improvident.  Finally,
    the appellant also seeks leave to appeal the substantial indemnity costs order
    that was made against it.

[5]

The motion judge gave very lengthy reasons for her decision.  She
    reviewed, in detail, the factual background of this matter including how the loan
    came about, the commencement of the litigation, and the steps that were taken
    that led to the settlement.  The motion judge concluded that the settlement had
    been entered into by a Director of the appellant who was authorized to do so. 
    The motion judge also pointed out that the appellant was represented by counsel
    throughout the proceeding, including all aspects of the settlement.  Finally,
    the motion judge concluded that there was no proper basis for her to exercise
    her discretion not to enforce the settlement.  It was clear, in the motion
    judges view, that the appellant had borrowed the monies in question and that
    the settlement, by which most of the monies were to be repaid over time, was a
    reasonable one.

[6]

The conclusions reached by the motion judge are entitled to deference by
    this court.  Given that those conclusions reflect findings of fact, this court
    can only interfere if the appellant demonstrates that the motion judge has made
    palpable and overriding errors:
Housen v. Nikolaisen
, 2002 SCC 33, [2002]
    2 S.C.R. 235.  The appellant has failed to do so in this case.  It is not the
    role of this court to reweigh the evidence or to substitute our view of the
    evidence for that of the judge of first instance.

[7]

There was ample evidence for the motion judges conclusion that the
    Director, who gave instructions to the appellants lawyer to enter into the
    settlement agreement, had authority from the appellants Board of Directors to
    do so.  In the motion judges view, given the state of the records of the appellant,
    the failure to find a resolution or minute of a meeting evidencing that
    authority was not fatal.  Minutes from Board meetings, taken together with the
    evidence of the Director and the contemporaneous correspondence from the
    appellants counsel, all provided support for that conclusion.

[8]

There was also a foundation supporting the motion judges conclusion
    that there was no proper basis to exercise her discretion not to enforce the
    settlement.  The respondent agreed to take a slight compromise in the amount
    owed, and to have it repaid over time, in order to effect a settlement.  It was
    a perfectly reasonable compromise for both parties to reach.  There was nothing
    improvident in the settlement.

[9]

The appellant also seeks leave to appeal the substantial indemnity award
    of costs made by the motion judge. Costs awards on the higher scale should be
    rare and exceptional:
Mortimer v. Cameron

(1994), 17 O.R. (3d) 1
    (C.A.) at p. 23.   In the circumstances of this case, we would not interfere
    with the discretion of the motion judge in respect of her decision on costs.

[10]

The
    appeal is dismissed.  While leave to appeal costs is granted, the costs appeal
    is also dismissed.  The respondent, Sri Guru Nanak Sikh Centre Brampton, is
    entitled to its costs of the appeal in the agreed amount of $7,500 inclusive of
    disbursements and HST. The respondent, Rexdale Singh Sabha Religious Centre, is
    entitled to its costs of the appeal in the agreed amount of $4,000 inclusive of
    disbursements and HST.

P. Lauwers J.A.

M.L. Benotto J.A.

I.V.B. Nordheimer J.A.


