3 total
Represented lawyer‑litigant cannot recover personal legal work as costs without proven opportunity loss.
The court determined costs arising from three related procedural motions in a partnership dispute among lawyers.
One motion compelled the departing partner to attend cross‑examination on an affidavit filed in a pending summary judgment motion; another sought a further and better affidavit of documents; and a third sought removal of a lawyer as solicitor of record.
The court addressed whether a represented lawyer‑litigant could recover costs for personal legal work performed on the file.
Applying authority including Fong v. Chan, the court held that a represented litigant who is a lawyer cannot recover personal time at counsel rates without proof of opportunity cost.
The court further emphasized the principle of reasonableness in costs and reduced the amounts claimed, awarding limited costs on the first two motions and none on the solicitor‑removal motion.
Plaintiffs awarded $33,000 in costs for settled and unargued motions, despite bringing a premature production motion.
The plaintiffs sought costs for several motions that were either settled or not heard, including an injunction motion, a motion to amend pleadings to add a fraudulent conveyance claim, and a motion for production of documents.
The underlying action involved a dispute over $500,000 in life insurance proceeds.
The court found that the plaintiffs were put to significant time and expense because the defendants initially refused to voluntarily freeze the insurance proceeds, which necessitated the injunction motion.
However, the court also found that the plaintiffs' motion for production of documents was premature as no discoveries had been held.
Balancing these factors and the principles of reasonableness and proportionality, the court awarded the plaintiffs $33,000 in costs.
Consent divorce order interpreted to require delinked pension division.
The applicant brought a motion seeking enforcement and interpretation of a consent divorce order requiring the respondent to divide his pension benefits such that the applicant would receive 40% of the current plan benefit.
The parties disagreed whether the order required a "linked" or "delinked" pension division under the Ontario Public Service Employees Union Pension Plan.
Applying principles of contractual interpretation to the consent order, the court held that the language requiring the pension to be divided so the applicant was "entitled, as a member of the plan" supported a delinked structure creating two separate pensions.
The court further held that such an arrangement did not offend the Pension Benefits Act because payment to the applicant would still only occur once the member’s pension came into pay.
The respondent was ordered to instruct the pension administrator to divide the pension on a delinked basis.
