



COURT OF APPEAL FOR ONTARIO

CITATION:
Healthy Lifestyle Medical
    Group Inc. v. Chand Morningside Plaza Inc., 2019 ONCA 248

DATE: 20190328

DOCKET: C65239 & C65504

Strathy C.J.O., Lauwers and
    Zarnett JJ.A.

BETWEEN

Healthy
    Lifestyle Medical Group Inc., Rochak Badhwar, Gore Doctors Medical Inc.,
Ashok
    Badhwar
,
Usha Badhwar
, Aash Karia, Bindaas Capital Inc., and Marvin
    Talsky

Appellants

and

Chand Morningside Plaza Inc.,
    and Joshi Group of Companies Ltd.

Respondents

and

Mark
    Klaiman and Jeb Assaf

Intervenors

Paul Robson and Karanpaul Randhawa, for
    the appellants

Jonathan L. Rosenstein, for the
    respondents

Scott Hutchison and Lauren Mills
    Taylor, for the intervenors

Heard: December 20, 2018

On
    appeal from the judgment of Justice A. Pollak of the Superior Court of Justice,
    dated January 3, 2017.

COSTS ENDORSEMENT

[1]

The context for this costs endorsement is set out
    in the courts decision in this matter reported at 2019 ONCA 6. The motion judge
    granted summary judgment against the appellants in the amount of about $950,000.
    We allowed the appeal and said:

In all the circumstances of this case,
    including the contentious issues of fact and law raised by the appellants, we
    allow the appeal, set aside the judgment and direct that the matter proceed to
    trial on all issues, without prejudice to the rights of the parties to file
    amended pleadings and to seek further relief under the
Rules
.

The Cost Submissions of Counsel

[2]

In his cost submissions, Mr. Robson, counsel for
    the appellants, seeks costs for the following: the motion for summary judgment,
    in the full indemnity amount of $7,000; the motions before this court, on a
    substantial indemnity basis in the amount of $10,760; and the appeal, on a
    substantial indemnity basis in the amount of $40,116.60. (We infer that these
    numbers include disbursements and HST.)

[3]

Mr. Robsons request for the enhanced levels of
    costs recovery is based on his allegation that counsel for the respondents
    misled this court by failing to ensure that the Amended Statement of Defence
    was in the Appeal Book. This was the pleading on which the appeal turned. Mr.
    Robson submits that the intervenors should share liability for costs with the
    respondents, on the basis that their lack of cooperation in producing their
    litigation file led to the omission of the Amended Statement of Defence from
    the Appeal Book. He further submits that all opposing counsel should pay these
    costs personally.

[4]

Mr. Rosenstein, counsel for the respondents,
    argues that there should be no award of costs to the appellants on the basis
    that it was the intervenors argument that won the appeal. He submits, in the
    alternative, that the appellants should receive only nominal costs in the
    amount of $750, and, in the further alternative, that costs before the motion
    judge be reserved to the trial judge, leaving only the appeal costs to be
    determined by this court. He also notes that the costs of motions before this
    court were awarded in each disposition. The exception is a motion heard by
    Trotter J.A. to reinstate an urgent stay relating to the enforcement of the
    mortgage. He granted the stay and set out a timeline for the proceedings, reserving
    the costs to this panel.

[5]

Mr. Hutchison, counsel for the intervenors,
    submits that no costs should be awarded against the intervenors in favour of
    the appellants, and he does not seek costs.

Discussion

[6]

Mr. Rosenstein denies any impropriety and
    submits that counsel for the appellants had the Amended Statement of Defence in
    his possession before the argument of the appeal, but chose strategically not
    to include it in the Appeal Book or to provide a separate copy to the court in
    order to better argue that the intervenors had provided ineffective assistance
    to the appellants.

[7]

In our view, neither Mr. Robson nor Mr.
    Rosenstein displayed exemplary conduct, and we see no basis on which to award
    enhanced costs to the appellants, nor to make opposing counsel personally
    liable for them. In the result, w
e reverse the partial
    indemnity award of costs for the summary judgment motion, and award costs in
    favour of the appellants against the respondents in the same amount. Because
    the appellants were successful, we follow the ordinary rule and award costs for
    the appeal on a partial indemnity basis in favour of the appellants against the
    respondents in the all-inclusive amount of $5,000, and an additional $2,000 for
    the motion heard by Trotter J.A. We award no costs against or in favour of the
    intervenors.

The Duties of the Parties and Counsel to the
    Court

[8]

While this is sufficient to dispose of the award
    of costs, we feel compelled to address an issue that arose in the cost
    submissions.

[9]

Mr. Rosenstein took this position in his costs
    factum:

There is no legal obligation on an opposing
    party, much less opposing counsel, to review the entire record below to
    determine whether, and if so what, has been omitted by the appellant from its
    appeal materials.

Further, assuming that the opposing party does
    at some later point realize that any portion of the record below has been
    omitted by the appellant, there is no basis upon which to require that the
    respondent has an affirmative obligation to supplement the record in a manner
    which assists the appellant.

[10]

We reject this excessively adversarial position.
    In our view the issue here is not about requiring one party to assist the
    other, it is about counsel ensuring that the pleadings before the lower court
    which are germane to the issue on appeal are accurately put before this court.

[11]

T
he
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194,

oblige
    the parties and their counsel to ensure that the court has before it all of the
    material necessary for the court to do justice. This is the intended result of
    the combined operation of
r. 61.10 prescribing the appeal book and
    compendium, r. 61.12 (7) prescribing the respondents compendium, and r.
    61.10.1 prescribing the exhibit book.


[12]

Rule
61.10 (1) (f) obliges the appellant
    to include the relevant pleadings in the appeal book and compendium. No
    correlative duty is placed on the respondent. There is therefore a wisp of
    technical support for Mr. Rosensteins assertion, although not more than a
    wisp. When, for whatever reason, the appellant omits from its materials a
    pleading central to the decision below and the appeal, a respondent should
    correct this and not make arguments on the basis that the record before the
    lower court was different than it actually was. And when an appellant learns
    that its materials omitted such a pleading it should seek leave to correct the
    record and revise its materials, not persist in the original error. To view the
    matter otherwise would be to adopt an unduly technical view of the duty of
    counsel.

[13]

These rules instantiate t
he foundational philosophical mandate of the
Rules
,

which is found in r. 1.04 (1):

These
rules
shall be liberally construed to secure the just, most expeditious
    and least expensive determination of every civil proceeding on its merits.

[14]

The Manitoba Court of Appeal rightly held:
    [C]ompliance with the
Rules

is desirable not as a pedantic
    exercise, but as a means of properly informing the Court of the relevant facts,
    of directing the Courts attention to the evidence relied upon and of defining
    the issues to be argued:
Kingswood Estates Inc. v. Hildebrand
,
[1995] M.J. No. 645
    (C.A.), at para. 6.

[15]

Even though ours is an adversarial system, its
    goal is to pursue truth in the interests of justice, in order to achieve the
    right result in the dispute for the right reason, according to law. T
here
    are many examples of ways in which rules and practices necessarily mitigate the
    adversarial nature of our system of justice
[1]
.

[16]

There is no doubt that had this appeal proceeded on the basis
    that the
the motion judge

did
    not have before her the
Amended Statement of Defence, which
    was the basis
put forward by both the appellant and the respondent until
    the intervenors set the record straight
, and not revised by
    the appellant until during oral argument, this court would have been tacitly misled
    on what the motion judge had before her and on the proper interpretation of her
    decision. This cannot be countenanced.

[17]

A party to an appeal, led by counsel, has the
    obligation to provide to the court any material necessary for the court to have
    a full appreciation of the matter under appeal, whether or not the material
    supports the partys position. In this appeal neither counsel took this
    obligation seriously enough after becoming aware that the Amended Statement of
    Defence had been omitted from their respective appeal materials.

G.R. Strathy C.J.O.

P. Lauwers J.A.

B. Zarnett J.A.





[1]

Robert Bell & Caroline Abela,
A Lawyers Duty to the Court
(undated), online: The Advocates Society <
https://www.advocates.ca/Upload/Files/PDF/Advocacy/InstituteforCivilityandProfessionalism/Duty_to_Court.pdf
>,
    at pp. 5 and 7.


