COURT OF APPEAL FOR ONTARIO
RE:
IAN SELLORS (Plaintiff) –and– TOTAL CREDIT RECOVERY LIMITED, TOTAL CREDIT BUREAU LIMITED, TOTAL CREDIT RECOVERY (ATLANTIC) LIMITED, TOTAL CREDIT RECOVERY (ALB) LIMITED, AGENCE DE RECOUVREMENT TCR LTÉE./TCR COLLECTION AGENCY LTD., TOTAL CREDIT RECOVERY (MANITOBA) LIMITED, TOTAL CREDIT RECOVERY (SASK.) LIMITED, TOTAL CREDIT RECOVERY (B.C.) LIMITED, TOTAL CREDIT FINANCIAL SERVICES INC., GEORGE KRIESER and 1064211 ONTARIO INC. (Defendants)
AND RE:
TOTAL CREDIT RECOVERY LIMITED (Appellant/Plaintiff by counterclaim) –and– IAN SELLORS, MARK SELLORS, SONJA SELLORS and ADECCO CANADA INC. (Respondents/Defendants by counterclaim)
BEFORE:
ABELLA, LASKIN and ROSENBERG JJ.A.
COUNSEL:
Theodor Kerzner, Q.C., for the appellant/plaintiff by counterclaim Total Credit Recovery
R. Douglas Elliott and Andrey A. Shecter, for the respondents/defendants by counterclaim Sonja Sellors and Adecco Canada Inc.
Andrew M. Pinto and Louise Horton, for the respondent/defendant by counterclaim Mark Sellors
HEARD:
December 6, 2000
On appeal from the judgment of Justice Joan L. Lax dated August 24, 1999.
E N D O R S E M E N T
1The appellant raises several issues concerning the costs order made by the motion judge.
- The scale of costs
2Although in her reasons on costs the motions judge did not advert to Sonja Sellors’ evidence about the misleading advertisement, she did so in her reasons on the summary judgment motion. On the evidence, the advertisement was inconsequential.
3We therefore think it was within the trial judge’s discretion to award solicitor-and-client costs, particularly having regard to her findings in paragraph [23] of her costs reasons, findings that in our view are fully supported by the record. We therefore decline to interfere with the order for solicitor-and-client costs.
- The allocation
4In our view, the motions judge was in as good a position as anyone to allocate costs. Moreover, the appellant was put on notice in the respondents’ written submissions that allocation was in issue. We decline to interfere with the allocation of costs.
- The costs of the action
5Because the action is proceeding against Sonja Sellors and Mark Sellors, neither of them should be entitled to the costs of the action now. The costs of the action against these respondents should await the end of the litigation. Adecco is entitled to its costs of the action. Because Adecco and Sonja Sellors are represented by the same solicitor, the assessment officer will have to be careful to ensure that only Adecco’s costs of the action are assessed and any double-counting is avoided.
- The costs of the motion for security for costs
6We decline to interfere with this part of the motions judge’s costs order, other than to add that these costs are obviously limited to the costs to date.
- The costs payable to the appellant
7Consistent with the usual practice, these costs should be payable now on a party-and-party basis and not in the cause.
8Leave to appeal costs is granted. Paragraph 3 of the judgment on the motion by Adecco and Sonja Sellors and paragraph 2 of the judgment on the motion by Mark Sellors are varied in accordance with this endorsement.
Signed: “R.S. Abella J.A.”
“John Laskin J.A.”
“M. Rosenberg J.A.”