Neilas Inc. v. Houston Engineering & Drafting Inc., 2016 ONSC 373

Neilas Inc. v. Houston Engineering & Drafting Inc., 2016 ONSC 373

CITATION: Neilas Inc. v. Houston Engineering & Drafting Inc., 2016 ONSC 373

DIVISIONAL COURT FILE NO.: 317/15 DATE: 20160114

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

AITKEN, SWINTON AND C. HORKINS JJ.

BETWEEN:

NEILAS (799 COLLEGE ST.) INC. and SKYPOINT HI-RISE LTD.

Appellants

– and –

HOUSTON ENGINEERING & DRAFTING INC., VN ENGINEERING & FACILITY PLANNERS INC. and HOUSTON THOMAS ENGIO

Respondents

Stephen M. Turk, for the Appellants

Mark A. D. Coleman, for the Respondents, Houston Engio and Houston Engineering

Houston Engio, In Person

HEARD at Toronto: January 14, 2016

SWINTON J. (ORALLY)

1The plaintiffs/appellants appeal with leave from the order of Whitaker J. dated June 4, 2015 removing Levine Sherkin Boussidan as their lawyers of record. The motions judge was hearing a motion to consolidate and extend time when he made this order.

2The order of the motions judge was clearly wrong and must be set aside. The Notice of Motion to remove the lawyers of record was made by the defendant, Houston Engio, even though he was represented by a lawyer at the time, and counsel representing him personally and Houston Engineering and Drafting Inc. had indicated that the motion to consolidate and to extend time was not opposed, and counsel did not appear at the hearing. At the time of the hearing, Mr. Engio did not have an order to represent the second corporate defendant VN Engineering & Facility Planners Inc.

3The motions judge erred in four ways:

(i) The motion was made without proper notice to the appellants.

(ii) The motion was made without any supporting evidence.

(iii) The appellants had no opportunity to file responding evidence.

(iv) Mr. Engio had no standing to bring the motion. He was represented by counsel personally, and an order had not been obtained to represent VN.

4In these circumstances, the motions judge erred in proceeding to hear and dispose of the motion as he did.

5Accordingly, the appeal is allowed and the order removing Levine Sherkin Boussidan as lawyers of record is set aside.

COSTS

6I have endorsed the back of the Appeal Book, “This appeal is allowed for oral reasons delivered by Swinton J. today. The order of the motions judge removing Levine, Sherkin, Boussadan as lawyers of record is set aside.

7With respect to costs, Molloy J. ordered that costs of the motion for leave to appeal were to be payable by Mr. Engio personally in the amount of $2,984.05 if the appellants succeeded on the appeal. In our view, he should also be responsible for the costs of the appeal, given that his conduct led to the need for this appeal. A cost award for the appeal in the amount of $1,000.00 is fair and reasonable. Therefore, Mr. Engio shall pay costs personally in the total amount of $3,984.05 payable within 30 days.”

___________________________ SWINTON J.