Court of Appeal for Ontario

CITATION: Rand Estate v. Lenton, 2009 ONCA 251

DATE: 20090320

DOCKET: C47747

Doherty, MacPherson and MacFarland JJ.A.

BETWEEN

The Estate of Rex Harold Rand, by its Estate Trustees Susan Sovie and Stewart G. Thomson and Job-Site Custom Coach Limited

Applicants (Respondents in Appeal)

and

Gerald E. Lenton, G.E. Lenton, Inc., Sun Life Assurance Company of Canada, Ernie Verbeem, Adriana Verbeem, Lissette Verbeem and Joselyn Parrell

Respondents

Counsel:

Ronald Slaght, Q.C., for the appellant, Carrel + Partners LLP

Christine J. Heselmann, for the Rand Estate and Job-Site Custom Coach Limited

Heard and orally released: March 17, 2009

On appeal from the order of Justice McGarry dated March 8, 2007, directing that Carrel + Partners pay costs to the applicants.

ENDORSEMENT

[1] The application judge appreciated the principles controlling a motion to compel solicitors to pay costs personally under Rule 57.07. He understood that such orders must be given with “extreme caution”. The application judge made several findings of fact against the appellant. He relied on these findings to justify the order he made under Rule 57.07 requiring the appellant’s solicitors to pay part of the costs incurred by the respondents in the proceeding. The findings of fact made by the trial judge are summarized at para. 18 of his reasons and need not be repeated here.

[2] The proceedings before the application judge went on for almost three years. There were numerous attendances and numerous proceedings within the broader scope of the application. The application judge who managed the proceedings was in a much better position than this court to make the necessary assessments underlying the findings of fact he eventually made. Those findings are, by their nature, somewhat subjective and the cold paper record cannot, in our view, capture all of the considerations that would be relevant to those findings. We defer to the trial judge’s findings unless they are clearly in error and clearly material to his ultimate determination.

[3] Counsel for the appellant took aim at one of the findings of fact made by the application judge. The application judge determined that the counter-application brought by the appellant was totally without merit and he inferred from that that it was part of a delaying strategy. Counsel submitted to us that the two points advanced on the counter-application were arguable. He has convinced us that the application judge’s evaluation of those arguments was unduly harsh. The arguments were not specious. The application judge’s characterization of the merits of the counter-application was, however, only one of several factors relied on by him. Even if we accept that there was some possible merit to those arguments, we do not think that this small adjustment to the factual backdrop would or should change the result arrived at by the application judge.

[4] Mr. Slaght also submits that while a trial judge may have jurisdiction under Rule 57.07 to go back after litigation is finished and revisit costs orders made against a party with a view to imposing additional costs obligation on solicitors personally, there is a real danger in taking that path. He submits that trial judges who revisit costs orders run the risk of unfairly judging the conduct of the solicitors through the lens of hindsight.

[5] We accept that hindsight has no place in the evaluation required by Rule 57.07. We, however, distinguish hindsight from the process of examining the entire course of litigation that went on before the application judge so that the application judge can put in proper context the specific actions and conduct of counsel. In our view, this holistic after-the-fact examination of the solicitors’ conduct can have advantages. First, it is more likely to produce an accurate tempered assessment and, second, it could provide a less intimidating method of approaching this kind of problem. In our view, it could be more intimidating if solicitors were met at each step in a piece of litigation with claims for costs and the kinds of assessments that those claims can necessitate. The timing of the Rule 57.07 application will depend on the circumstances of the particular case.

[6] We have reviewed the other findings of fact challenged in the appellant’s factum. We would not interfere with those findings. We think there was ample basis to find that the conduct of the solicitors caused inordinate and unnecessary delay in these proceedings, particularly in the painfully protracted enforcement stage. We also think there was ample basis for a finding that the conduct of the solicitors resulted in wasting of court time. That conduct as referred to by the application judge included non-appearance on more than one occasion, disregarding court orders and being unprepared for various motions. We would not interfere with these findings and they justify the conclusion arrived at by the application judge. The appeal is dismissed.

[7] In our view, an appropriate order for costs on a partial indemnity basis for the appeal and the leave to appeal is fixed at $10,000, inclusive of disbursements and GST. In arriving at this amount, we have regard to the history of this matter as outlined to us by counsel.

“Doherty J.A.”

“J.C. MacPherson J.A.”

“J. MacFarland J.A.”