Lysko v. Braley, 2006 CanLII 17253 (ON CA)

Court of Appeal for Ontario

Docket: C42807 Date: 2006-05-24

Between:

Michael Lysko

Plaintiff (Appellant)

• and -

David Braley, David Asper, Sherwood Schwarz, Lyle Bauer, John Tory, Jeffrey Giles, David MacDonald, George Grant, Hugh Campbell, Robert Ellard, Robert Wetenhall, Sig Gutsche, B.C. Lions Football Club Inc., Vancouver Football Operations Ltd., 431966 B.C. Ltd., Calgary Stampeder Football Club Ltd., Edmonton Eskimo Football Club, Montreal Alouettes (1997) Limited Partnership, 9032-9756 Quebec Inc., 1493044 Ontario Limited, carrying on business as the Ottawa Renegades, Saskatchewan Roughriders Football Club, Argos N.S. Corporation, Toronto Argonauts Holding Inc., and Winnipeg Blue Bombers Football Club

Defendants (Respondents)

Before: Laskin, Rosenberg and LaForme JJ.A.

Counsel: J. Gardner Hodder and Marlo K. Shaw, for the appellant Geoffrey B. Shaw, for the respondents David Bradley and Hugh Campbell Mark J. Freiman, for the respondents David Asper and Lyle Bauer P. Jock C. Climie, for the respondent Robert Wetenhall John C. Field and Jason Green, for the corporation respondents and other individual respondents

Heard: November 1 & 2, 2005 Reasons Amended: April 13, 2006 Reasons Released: March 27, 2006

Costs Endorsement

1As in the court below, counsel for the appellant and for Mr. Wetenhall have agreed on costs. These reasons concern the costs dispositions for clients represented by Mr. Field, Mr. Shaw and Mr. Freiman.

2Before the motions judge, the respondents achieved virtually complete success on their motions. On appeal, the appellant succeeded in one respect or another against almost all of the respondents. Admittedly, he did not succeed entirely and several of his causes of action cannot proceed. He also failed to persuade this court of his novel argument that he should be entitled to proceed against a group of four respondents lumped into a category called the unidentified source.

3In our view, having regard to the order of this court, the appropriate order in the circumstances is to recognize the modest success each side achieved at both levels. Accordingly, we make the following orders:

4Costs before the motions judge to the respondents as follows:

Mr. Field's clients: $30,000

Mr. Shaw's clients: $10,000

Mr. Frieman's clients: $4,500

5Costs in the Court of Appeal to the appellant as follows:

Payable by Mr. Field's clients: $15,000

Payable by Mr. Shaw's clients: No costs

Payable by Mr. Frieman's clients: $5,500

6All orders are inclusive of GST and disbursements.

7In making these orders we have taken into account the various arguments made by the parties including the submission by the appellant that the unidentified source argument was a novel one and the submission by the respondents that the statement of claim was prolix, in many respects was frivolous and vexatious and did not comply with the pleading rules. We have also attempted to accommodate the appellant's argument that costs were increased because of a multiplicity of counsel. That said, we found all counsels' submissions helpful and there was really no repetition or overlapping of submissions in oral argument.

Signed: "John Laskin J.A."