David Sheriff-Scott

This costs endorsement followed a successful motion by the plaintiff's solicitors, Victor Ages Vallance LLP (VAV), to assert a solicitor's lien and obtain a charging order over a $48,000 costs award owed to their client.

The Conservative Party of Canada (CPC), a judgment creditor, opposed this relief and sought to garnish the funds, and subsequently requested to set off the costs awarded to VAV against an earlier costs award owed by the plaintiff to CPC.

The court awarded VAV partial indemnity costs for their successful motion, albeit reduced from their requested amount due to some over-lawyering.

The court denied CPC's request for set-off, reasoning that it would unfairly penalize the solicitors for asserting a valid right.

The plaintiff's solicitors, Victor Ages Vallance LLP (VAV), sought a declaration of a valid solicitor's lien and a charging order under section 34(1) of the Solicitors Act over $47,886 in costs awarded to the plaintiff.

These funds were held in trust by counsel for Arthur Hamilton and Cassels Brock & Blackwell LLP.

The Conservative Party of Canada (CPC), a creditor of the plaintiff, opposed the relief, asserting a garnishment notice and arguing for an equitable set-off.

The court found that the fund came into existence due to VAV's efforts, establishing a solicitor's lien with priority over garnishment.

The court rejected the equitable set-off argument due to a lack of mutuality of debts.

The charging order was granted, directing the funds to be paid to VAV.

Following the dismissal of the defendants' motion for leave to appeal, the parties made written submissions on costs.

The plaintiff sought partial indemnity costs of $11,853.89, while the defendants argued the amount should not exceed $5,000 based on average awards for similar written motions.

The court found the motion for leave involved complex constitutional issues, justifying a higher award than typical leave applications.

The court awarded the plaintiff costs fixed at $8,000 inclusive of HST and disbursements.

The defendants sought leave to appeal to the Divisional Court from a motion judge’s decision partially refusing to strike portions of a statement of claim under Rule 21.

The defendants argued that certain claims relating to the plaintiff’s removal from political office were non‑justiciable due to Crown prerogative and that references to testimony before a Parliamentary Committee were barred by parliamentary privilege.

The court held that the low threshold for surviving a pleadings motion meant the motion judge’s rulings were not open to serious debate.

The court further held that potential conflicts between parliamentary privilege and solicitor‑client privilege could appropriately be addressed at trial on a full evidentiary record.

The defendants brought a motion under Rule 21.01(b) of the Rules of Civil Procedure to strike portions of an amended statement of claim alleging breach of solicitor-client duties and defamation.

The court considered challenges including alleged non‑justiciable claims tied to parliamentary and executive privilege, insufficient particulars in the libel pleadings, prior determinations that certain statements were not defamatory, and whether fiduciary duty allegations were merely disguised defamation claims.

The court held that most allegations were properly pleaded and could proceed, including claims relating to alleged breaches of fiduciary duty and defamatory statements.

However, portions alleging that previously adjudicated statements were defamatory had to be re‑cast due to issue estoppel.

References to parliamentary committee testimony were permitted to remain pending determination of privilege issues at trial.

The applicants sought a declaration that their insurer had a duty to defend them in a defamation action arising from a video posted online.

They argued that, as employees of the named insured organization, the claim potentially fell within the commercial liability policy covering personal injury and advertising injury.

The court held that the duty to defend must be determined primarily from the Statement of Claim and that extrinsic evidence may only be considered in limited circumstances to clarify the substance of the pleadings.

The pleadings alleged only that the applicants posted a defamatory video and contained no facts suggesting the conduct occurred in the course of employment with the insured organization.

As there was no “mere possibility” that the claim fell within policy coverage, the insurer had no duty to defend.