Serniak v. Teitel, 2010 ONCA 436

APPEAL BOOK ENDORSEMENT

1We see no basis for interfering with para. 1(a) of the motion judge's order permanently staying all allegations in the assessment of costs proceeding that refer to the alleged refusal by the mortgagee's solicitor to allow the appellant to renew or refinance or redeem her mortgage(s).

2Although the parties to the assessment proceedings are the mortgagor and the mortgagee's solicitor, in our view, the only issues properly raised on the assessment hearing are the propriety of the costs charged by the solicitor to his client, the mortgagee. Because the mortgagee's costs are passed on to the mortgagor under the terms of the mortgage(s), in this type of assessment proceeding, the mortgagor effectively stands in the shoes of the mortgagee.

3Other issues, pertaining to the mortgagee's entitlement to costs as against the mortgagor, are properly litigated between the appellant and the mortgagee. Such issues include the allegations referred to in para. 1(a) of the motion judge's order and, for example, allegations of an improvident sale.

4As for para. 1(b) of the motion judge's order requiring that the appellant order the transcript of the assessment proceedings to date relating to “the remaining issues of the assessment” as a condition of proceeding with the assessment, we are advised that the only transcript necessary to deal with the issue properly before the assessment officer, namely, the propriety of the costs charged by the solicitor to his client, the mortgagee, is available. In these circumstances, we set aside para. 1 (b).

5In all the circumstances, the costs order below is set aside. All parties will bear their own costs of this appeal and the proceeding below.