Carleton et al. v. Beaverton Hotel et al.

[Indexed as: Carleton v. Beaverton Hotel]

96 O.R. (3d) 391

Ontario Superior Court of Justice,

Divisional Court,

Cunningham A.C.J., Hackland R.S.J. and Taliano J.

May 21, 2009

Civil procedure -- Costs -- Costs against solicitor personally -- Motions judge awarding costs against solicitor personally on basis that he made groundless or unproved allegations of unprofessional conduct on part of defendants' lawyer and that he had been conducting litigation in unreasonable manner -- Solicitor's appeal allowed -- Costs should be awarded against solicitor personally sparingly and only in clear cases -- Motions judge failing to indicate how solicitor's misconduct caused costs to be unreasonably incurred -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 57.07.

The motion judge awarded costs against the plaintiff's solicitor personally under rule 57.07 of the Rules of Civil Procedure, largely on the basis that he had made groundless or unproved allegations of unprofessional conduct on the part of the defendant's lawyer and that he had been conducting the litigation in an unreasonable manner for many months. The solicitor appealed.

Held, the appeal should be allowed.

Awards of costs against a solicitor personally under rule 57.07 should be made sparingly, with care and discretion, only in clear cases and not simply because the conduct of a solicitor may appear to fall within the circumstances described in rule 57.07(1). In determining whether to award costs against a solicitor personally, the first question is whether the lawyer's conduct falls within rule 57.07(1) in the sense of causing costs to be incurred unreasonably, and the second question is whether in the circumstances of the particular case the imposition of costs against the lawyer is warranted. In this case, the motions judge failed to indicate how the solicitor's misconduct caused costs to be unreasonably incurred. Costs should not be awarded against a solicitor personally under rule 57.07 for professional misconduct which does not create unnecessary costs.

APPEAL from an award of costs made against the solicitor personally. [page392]

Cases referred to Walsh v. 1124660 Ontario Ltd., 2007 4789 (ON SC), [2007] O.J. No. 639, 155 A.C.W.S. (3d) 701 (S.C.J.); Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, [1993] S.C.J. No. 112, 108 D.L.R. (4th) 193, 160 N.R. 1, [1993] 8 W.W.R. 513, J.E. 93-1766, 34 B.C.A.C. 161, 84 B.C.L.R. (2d) 1, [1993] R.D.F. 703, 49 R.F.L. (3d) 117, 43 A.C.W.S. (3d) 410, apld Other cases referred to Carleton v. Beaverton Hotel, [2008] O.J. No. 542, 164 A.C.W.S. (3d) 703 (S.C.J.) [Leave to appeal granted [2008] O.J. No. 3050 (S.C.J.)]; Carleton v. Beaverton (2007), 2007 56513 (ON SC), 88 O.R. (3d) 792, [2007] O.J. No. 5020, 163 A.C.W.S. (3d) 228 (S.C.J.); Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham, [1998] O.J. No. 527, 51 O.T.C. 321, 16 C.P.C. (4th) 201, 77 A.C.W.S. (3d) 717 (Gen. Div.); Rand Estate v. Lenton, [2007]