



COURT OF APPEAL FOR ONTARIO

CITATION: Elguindy v.
    Elguindy, 2020 ONCA 739

DATE: 20201120

DOCKET: M51737 (C68046)

Fairburn
    A.C.J.O., Roberts and Coroza JJ.A.

BETWEEN

Emad Elguindy and Irene Elguindy

Plaintiffs

and

Afrodite Elguindy
and
Aziz Elguindy

Defendants (
Moving Party
/
Responding Party
)

Aziz Elguindy,
    acting in person

Mitchell J. Bates,
    for the responding party

Heard: in
    writing

On appeal from the costs order of
Justice James R.H. Turnbull of the Superior Court of
    Justice, dated January 27, 2020, with reasons reported at 2018 ONSC 4584
.

REASONS FOR DECISION

[1]

The moving party, Aziz Elguindy,
brings a
    motion for leave to appeal the trial judges costs order under s. 133(b) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43.

[2]

Mr. Elguindy had previously
sought an
    extension of time to appeal from the trial costs order made in favour of his
    former spouse, the responding party, Afrodite Elguindy. By order dated March 2,
    2020, Nordheimer J.A. dismissed Mr. Elguindys extension motion because he did
    not meet the criteria for an extension. In particular, he did not demonstrate
    that he had a
bona fide
intention to appeal
    within the requisite time. Nordheimer J.A. ordered Mr. Elguindy to pay Ms.
    Elguindy $1,500 in costs. These costs remain unpaid.

[3]

Mr. Elguindy submits that the trial judge erred in granting costs
    to Ms. Elguindy. We disagree and dismiss his motion for leave to appeal.

[4]

Mr. Elguindy and his former spouse were defendants in an action
    brought by Mr. Elguindys parents to recover loan and trust monies advanced to
    them. Funds from the sale of properties into which these monies had been placed
    were paid into court pending the outcome of the action. Mr. Elguindys parents
    achieved partial success in their action, as did Ms. Elguindy with her defence.

[5]

The trial judge ordered that Ms. Elguindy, who was represented by
    counsel at the nine-day trial, be granted judgment for her partial indemnity
    costs of the action in the amount of $82,693.87, and that this amount be paid
    forthwith from the balance of funds in court to the credit of the action. The
    trial judge explained his order at para. 89 of his reasons:

Part of the reason this trial took so long was the failure of
    [Mr. Elguindy] to participate in a meaningful way, including providing
    production of bank records and other documents to assist the court.
    Furthermore, [Ms. Elguindy] has been partially successful resulting in some of
    the funds in court being available to [Mr. Elguindy and Ms. Elguindy] for
    allocation to them in their family law litigation. [Mr. Elguindy] will benefit
    directly or indirectly from that success. He therefore should bear part of its
    cost.

[6]

It is well established that leave to appeal costs should only be
    granted sparingly where there are strong grounds upon which this court could
    find that the trial judge erred in exercising his discretion:
Brad-Jay Investments Limited v. Village Developments Limited
,
    218 O.A.C. 315 (C.A.), at para. 21, leave to appeal refused, [2007] S.C.C.A.
    No. 92. We see none here.

[7]

Although noted in default, Mr. Elguindy was a defendant in these
    proceedings and testified as a witness in support of his parents claim. He had
    obligations under the rules of procedure to provide relevant documents, which
    the trial judge found he had failed to do, and which he also found increased
    the length and cost of the trial. Along with these factors, the trial judge
    properly took into account Ms. Elguindys partial success in the action.
    Accordingly, it was open to the trial judge to make the order for payment of
    Ms. Elguindys costs from the funds in court.

[8]

We therefore dismiss Mr. Elguindys motion for
    leave to appeal.

[9]

Ms. Elguindy is entitled to her partial indemnity costs of this
    motion in the amount of $1,000 inclusive of disbursements and applicable taxes,
    which is in addition to the $1,500 costs order made by Nordheimer J.A
. that remains unpaid. We decline to grant the other relief
    requested by Ms. Elguindy.

Fairburn
    A.C.J.O.

L.B.
    Roberts J.A.

S.
    Coroza J.A.


