J. Brian Casey

The appellants, having successfully appealed a trial decision regarding the enforcement of a Florida judgment, moved for the payment out of court of moneys they had posted as security for costs.

The respondents, who had been granted leave to appeal to the Supreme Court of Canada, moved for a stay of execution of the Court of Appeal's judgment.

The Court of Appeal dismissed the appellants' motion, finding it just to maintain the status quo and keep the security in court pending the Supreme Court appeal due to the appellants' non-resident status and potential hardship.

The Court granted the respondents' motion for a stay of execution, accepting an irrevocable $1 million guarantee from the Lawyers Professional Indemnity Company as satisfactory security.

Following an appeal judgment, the successful appellant sought costs against the respondents.

The Court of Appeal ordered that the costs be recoverable against both respondents jointly and severally, as they shared a community of interest in the appeal and filed a joint factum.

The plaintiff sued his former solicitor for negligence after the solicitor failed to include a due on sale clause in a vendor take back mortgage.

The plaintiff's former spouse, who co-owned the mortgage, refused to join the action and was added as a defendant.

She counterclaimed against the plaintiff for occupation rent of their former matrimonial home.

The trial judge found the solicitor negligent and awarded damages to both the plaintiff and his former spouse, while also ordering the plaintiff to pay occupation rent and extinguishing judgment debts he had purchased against her.

On appeal, the Court of Appeal upheld the negligence finding but ruled the solicitor was only liable to the plaintiff for his half of the damages, as the former spouse had not sued him.

The Court also upheld the occupation rent award but reversed the extinguishment of the assigned judgment debts, allowing the plaintiff to enforce them.

This was a costs endorsement following a civil appeal in which one appellant was fully successful and another reduced its liability to 20 percent of the plaintiffs’ damages.

The court applied the usual rule that costs follow the event, awarded the successful appellant its assessed trial costs against the plaintiffs, and upheld the trial judge’s costs award against the partially successful appellant despite the modest damages award and absence of a Rule 49 offer.

The court declined to make either a Bullock or Sanderson order.

Both appellants were awarded their party-and-party costs of the appeal.