CITATION: Loreto v. Little, 2013 ONSC 6388
DIVISIONAL COURT FILE NO.: 233/13
DATE: 20131010
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
FRANK LORETO
Plaintiff
– and –
IAN ALEXANDER LITTLE, DIANNA MORELLO, PIERA SEGRETO, JOSEPH JOHN VETTESE, LITTLE MORELLO VETTESE SEGRETO LLP, MARISA AMATO, CHARLENE ROSE MIRANDA, REGINA SAWZAK and SARAH ZERIHUN
Defendants
In Person
Enzo Di Iorio, for the Defendants
HEARD at Toronto: October 10, 2013
HIMEL J. (orally)
[1] The defendants move for leave to appeal the order of Matlow J. dated March 18, 2013. They argue there is reason to doubt the correctness of the order and leave should be granted. The respondent opposes the relief sought.
Background
[2] Four lawyers left a law firm where the plaintiff Frank Loreto also worked. The lawyers set up a new firm, LMVS. Loreto sued the departing associates in 2008 for breach of fiduciary duty. The trial judge dismissed the action. Loreto appealed and also began assessments of 92 files that had been transferred to the new firm. The defendants sought a stay of the assessments pending the appeal of the trial judgment. That was granted on August 10, 2010. Then, Mr. Loreto abandoned his appeal, elected to proceed with his assessment and commenced a further action. The defendants moved to dismiss the new action and stay the other proceedings and appointed an assessment officer to assess the quantum of any compensation owing to Mr. Loreto. Mr. Loreto brought a cross motion to amend his claim and plead new causes of action. Matlow J. heard the motion and cross motion on February 17, 2011 and delivered an endorsement on April 18, 2011 staying the actions until Mr. Loreto’s compensation on files was assessed under the Solicitors Act. There was no specific provision on costs.
[3] On August 2, 2011, Matlow J. sent an endorsement that after the assessment was completed, he would fix a time to hear submissions on costs. Mr. Loreto brought a further motion before Matlow J. on November 8, 2011 which was adjourned to November 25, 2011. On November 25, 2011, Matlow J. dismissed the motion and said he was reserving his decision on costs related to the November 8 and November 25, 2011 attendances. On December 5, 2011, Matlow J. sent out a further endorsement granting certain relief to Mr. Loreto.
[4] Once the assessments were completed, Mr. Loreto wrote to Matlow J. requesting an appointment to address a number of issues. Matlow J. issued an order dated March 18, 2013 fixing costs at $5,000 and setting aside the stays of the action. The defendants now wish to appeal this order on the basis that the motion was never argued and costs should not have been awarded.
Decision
[5] An appeal lies to the Divisional Court from an interlocutory order of a judge with leave: see s. 19(1)(b) of the Courts of Justice Act and Rule 62.02(1) of the Rules of Civil Procedure.
[6] The moving parties (defendants) argue that leave should be granted because the March 2013 order of Matlow J. contradicts Canadian courts’ jurisprudence and it is desirable leave be granted. Further, there is good reason to doubt the correctness of the decision and the matter is of sufficient importance. The defendants argue there are contradictory decisions, that costs were awarded by Matlow J. for motions not yet decided and that typically costs follow the event. Here, costs were not reserved.
[7] In my view, the award of costs is clearly a discretionary matter as set out in s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure. It would appear and there is some suggestion that Matlow J. awarded costs for the November 8 and November 25, 2011 attendances on which he had reserved the issue of costs. The amount of costs, that is $5,000, was deemed to be fair and reasonable in the circumstances. In my view, there may not be reason to doubt the correctness of his order. However, the real issue is whether this is a matter of sufficient importance to warrant an appeal to this court. The test under Rule 62.02 is two-prong and the latter part, in my view, is not met.
[8] Accordingly, the motion for leave to appeal the decision of Matlow J. is dismissed.
Costs
[9] I have endorsed the Motion Record, “For oral reasons given, the application for leave to appeal is dismissed as there is not good reason to doubt the correctness of the decision and moreover, the matter is not of significant importance to warrant the attention of this court. In light of the circumstances and that the successful party is a lawyer but is self-represented and filed materials late, I fix costs of $1,000, an amount I deem fair and reasonable in this case, payable by the defendants (applicant) to the plaintiff (respondent) within 30 days.”
HIMEL J.
Date of Reasons for Judgment: October 10, 2013
Date of Release: October 21, 2013
CITATION: Loreto v. Little, 2013 ONSC 6388
DIVISIONAL COURT FILE NO.: 233/13
DATE: 20131010
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HIMEL J.
BETWEEN:
FRANK LORETO
Plaintiff
– and –
IAN ALEXANDER LITTLE, DIANNA MORELLO, PIERA SEGRETO, JOSEPH JOHN VETTESE, LITTLE MORELLO VETTESE SEGRETO LLP, MARISA AMATO, CHARLENE ROSE MIRANDA, REGINA SAWZAK and SARAH ZERIHUN
Defendants
ORAL REASONS FOR JUDGMENT
HIMEL J.
Date of Reasons for Judgment: October 10, 2013
Date of Release: October 21, 2013