CITATION: Blake v. Blake, 2020 ONSC 6331

DIVISIONAL COURT FILE NO.: 409/19

DATE: 2020 10 19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

BRUCE HOWARD BLAKE, KATHRYN JOAN HOMES and PATRICIA RUTH GEDDES

Fred Leitch, for the Applicants Bruce Howard Blake and Kathryn Joan Homes

Edwin Upenieks and Angela Kwok for the Applicant Patricia Ruth Geddes

Respondents (Applicants)

• and -

KENNETH GEORGE BLAKE and KENNETH GEORGE BLAKE, in his Capacity as Estate of Trustee of the Estate of Ainslee Elizabeth Blake

Lionel Tupman and Caroline Tarjan for the Respondent/Appellant Kenneth George Blake

Appellant (Respondent)

Sean Dewart, for the Proposed Intervenor, Gregory Sidlofsky

HEARD: September 10, 2020 by videoconference

REASONS FOR JUDGMENT

Fowler Byrne J.

1A non-party, Gregory Sidlofsky (“Sidlofsky”), seeks the following relief:

a) Leave to intervene as an added party to this appeal, and that he be permitted to make written and oral submissions at the appeal with respect to the findings of Regional Senior Justice Daley regarding Sidlofsky; or

b) An order appointing amicus curaie, to argue the appeal from the adverse position to the proposed intervenor, to be funded by the Lawyers’ Professional Indemnity Company; and

c) His costs.

2The Lawyers’ Professional Indemnity Company has consented to the relief sought in subparagraph 1(b) herein. The Appellant in this matter, Kenneth George Blake (“Blake”), who was the Respondent in the court below, opposes this relief. The remaining parties took no position in this motion.

I. Background

3On September 19, 2018, Blake, in his personal capacity and as estate trustee, brought a motion for summary judgment seeking to dismiss the claims of the Applicants. This motion was argued before Regional Senior Justice Daley (as he was then) (“Motion Judge”). In his decision of March 18, 2019, the Motion Judge dismissed the motion and invited written submissions on costs.

4At all relevant times, Sidlofsky was counsel of record for Blake, personally, and in his capacity as estate trustee. Sidlofsky made written submissions on costs on behalf of his client and delivered them to the Motion Judge as directed.

5On July 8, 2019, the Motion Judge released his costs endorsement (“Costs Decision”). In the Costs Decision, the Motion Judge expressly considered Sidlofsky’s conduct as counsel and the resulting cost implications. In particular, the Motion Judge found that Sidlofsky breached his duty to the court, and because of this breach, found that it was a proper case for an award of substantial indemnity costs in the sum of $91,695.13 payable by Sidlofsky’s client, Blake, in favour of the Applicants.

6Blake sought leave to appeal the Costs Decision, which was granted on December 13, 2019. Blake then filed his appeal on December 23, 2019.

7In or around January 2020, the parties in the main action settled their dispute in its entirety. Accordingly, Blake has no interest in pursuing his appeal of the Cost Decision. That being said, the court was advised at the argument of this motion that after the affidavits in support of this motion were sworn, Sidlofsky commenced an action against Blake for his legal fees. Blake has defended this claim and made his own counterclaim for damages for negligence and breach of contract, relying specifically on the Costs Decision (“Collection Action”).

II. Issues

8This court has been asked to determine whether Sidlofsky should be granted intervenor status on the appeal of the Costs Decision and whether he should be allowed to pursue a moot appeal.

9Sidlofsky has indicated that he does not want to pursue the appeal in its entirety, but rather limit the issues to those related to him and his duty to the court, and those issues that affect the legal profession in general.

III. Analysis

A. Leave to Intervene

10Rule 13 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194 sets out the circumstances in which a person may seek leave to intervene as an added party. If these circumstances exist, the court is directed to consider whether the intervention of this party will unduly delay or prejudice the determination of the rights of the parties to the proceeding.

11I find that Sidlofsky is a person with an interest in the subject matter of the proceeding, as contemplated by r. 13.01(1)(a). The protection of a proposed intervenor’s integrity is a legitimate interest for the purposes of this subrule: Peel (Regional Municipality) v. Greater Toronto Airports Authority, [1999] O.J. No. 1921 (Ont. S.C.J.), as cited in Bearden v. Lee, [2005] O.J. No. 1834 (Ont. S.C.J.), at para 8-9. In addition, but for his participation as a party in this appeal, Sidlofsky would have no recourse to appeal the findings that were made as against him: Butty v. Butty, (2009) 2009 ONCA 92125, 98 O.R. (3d) 713, at para. 9-10 (Ont. C.A.). This is particularly important to him given that Blake has relied on these findings in the Collection Action.

12I also find that the participation of Sidlofsky will not unduly delay or prejudice the rights of the remaining parties to the litigation. The other parties have resolved their dispute. Their participation is not necessary if the issues to be appealed are limited to those associated with Sidlofsky only. Such a limiting order is appropriate in the circumstances so that the settlement reached by the parties is not disturbed.

13It is recognized that the result of this appeal will have an impact on the Collection Action, but I do not find that the inclusion of Sidlofsky in this appeal will unduly delay or prejudice Blake’s rights in that action. It is Sidlofsky who has started the Collection Action. If that action is delayed, it is Sidlofsky’s right to collect his fees that delayed. Also, Blake chose to directly tie his defence and counterclaim to the Costs Decision and the amount he was required to pay. The issues raised in his defence and counterclaim must be determined. As a party to this appeal, he has the right to make submissions on the issues if he so chooses. After this appeal is heard, Blake will also have the opportunity to amend or otherwise move forward with the Collection Action, if necessary. There is no prejudice to Blake.

B. Argument of a Moot Appeal

14As indicated, the main application has been resolved. None of the parties have any interest in the appeal of the Costs Decision as they have resolved all issues as between them. The court is entitled to decline to decide cases in which the decision will have no practical effect on the parties: Ontario (Provincial Police) v. Mosher, 2015 ONCA 722, at para. 28; Borowski v. Canada (Attorney General), 1989 SCC 123, [1989] 1 S.C.R. 342, at p. 353.

15Sometimes though, the court may exercise its discretion to depart from this doctrine of mootness and entertain a matter nonetheless. In exercising its discretion, the court must first, determine whether the essential tangible and concrete dispute between the parties have disappeared, and if yes, the court then will exercise its discretion in deciding whether to hear the case: Borowski, at p. 353; Mosher, at para. 29-30.

16When exercising its discretion, the court should consider the extent to which the case engages any of the rationales underlying the doctrine of mootness:

a) The need for an adversarial context that guarantees that issues are fully argued by parties who have a stake in the outcome;

b) the concern for judicial economy; and

c) awareness of the courts’ law-making function and the limits of that function so as to avoid intrusions into the role of the legislative branch.

Borowski, at pp. 358-362; Moser, at para. 32.

(i) Is the Appeal Moot?

17The result of the appeal of the Costs Decision will have no effect on the essential tangible and concrete dispute between the parties with respect to the issues in the main application. In that application, Blake’s obligation to pay the costs awarded by the Motion Judge was part of the overall settlement of this application with the other parties. Nothing in this appeal will affect that or change that. Those issues were settled. The only practical effect this appeal will have is on Blake’s right to resist the payment of his legal fees and to pursue his counterclaim in the Collection Action, a separate action. Accordingly, the appeal in this application is moot.

(ii) Discretion to Depart from Doctrine of Mootness

18Despite this appeal being moot, I find that it is appropriate to depart from the doctrine of mootness with respect to specific issues in the appeal. In so deciding, I have considered the aforementioned criterion.

a. Adversarial Process

19It is not certain whether Blake will take an adverse role in the appeal when it proceeds. Nonetheless, the Lawyers’ Professional Indemnity Company has agreed to act as amicus curiae in this matter to argue the position contrary to that of Sidlofsky, thus preserving the adversarial process.

b. Judicial Economy

20The finite and scarce nature of judicial resources is well known. Before the court is willing to devote resources to a case which has resolved, the court must determine whether the special circumstances of the case make it worthwhile to apply these scarce resources: Borowski, at p. 360.

21Some of the factors that may weigh in favour of the use of these scarce judicial resources is:

a) If the court’s decision will have some practical effect on the rights of the parties notwithstanding that it will not assist in resolving the controversy which gave rise to the action: Borowski, at p. 360;

b) If the case addresses an issue that recurs frequently but is only relevant for a brief duration and usually resolves itself before it gets to a hearing: Borowski, at p. 360-61;

c) If the case addresses an issue that may independently evade review by the court – this includes the situation when the review of the issue requires a costly, three-stage appeal process: Borowski, at p. 360; Dagg v. Cameron Estate, 2017 ONCA 366, at para. 34;

d) If the decision on the issue will yield benefits in the future: Mosher, at para. 46; and

e) If the case raises an issue of public importance of which a resolution is in the public interest, such as when there is continued uncertainty in the law: Borowski, at p. 361.

22In the case before me, there are factors that both support the use of scare judicial resources and other factors that do not, but those factors in support of the use of these scare judicial resources are more compelling.

23In his reasons, the Motion Judge outlined with great detail the law relating to a lawyer’s duty to the court and, in particular, his or her duty to advise the court of relevant binding authorities. There is no uncertainty in these principles. There are some issues though, that are uncertain. In this situation, a binding authority, which was released after the hearing, but while the ruling was under reserve, was not brought to the attention of the Motion Judge. What are counsels’ duties in this respect? Also, in what circumstances can a cost ruling be made against a party that is impacted by his or her counsel’s behaviour? What, if any, evidence is required? These questions are of importance to the legal profession and to general public as well, as it impacts their vulnerability to costs award based on their counsel’s conduct.

24I also find that the issues raised by Sidlofsky can evade review by this court. If an adverse costs ruling is made, there is not an automatic right of appeal – leave is required if it is the sole issue to be decided: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(b). Leave to appeal a final order as to costs is granted only in unusual circumstances, only in the most obvious cases, and very sparingly: Ramsahai-Whing v. Weenen, 2017 ONSC 1091 (Div. Ct.), at para. 8. The many steps and costly process of such an appeal has already been found to be a factor in determining if an issue evades review: Dagg at para. 34. I note that Blake has already sought leave to appeal the Costs Decision, which leave was granted. The unusual circumstances have already been made out.

25In addition, in the event that an adverse cost finding is made against a client as a result of conduct by his or her lawyer, it puts the client in an adversarial position vis-à-vis his or her lawyer. If the client supports his lawyer, he or she must fund an appeal through a leave application and then the appeal itself. If the client does not support his or her lawyer, he or she would be required to discharge his or her lawyer and seek independent legal advice regarding their options vis-à-vis the cost order. This makes the likelihood of an appeal of a costs order of this nature less likely to occur.

26As previously indicated, although the main application has been settled, the appeal would still have a practical impact on Blake. Sidlofsky has sued him for legal fees. In his statement of defence, Blake relies extensively on the Costs Decision, and includes large excerpts from the Costs Decision. If left untested, the Cost Decision could be determinative of some or all of Blake’s defence and counterclaim. Accordingly, Blake has an interest in this appeal not going forward, but has an interest nonetheless.

27Accordingly, after reviewing these factors, I find that the use of judicial resources is warranted in this situation and will be controlled by limiting the issues to be decided.

c. Role of the Courts

28I do not find that the hearing of limited issues on this appeal intrudes on the legislative branch of the government. The Law Society Act, R.S.O. 1990, c. L.8, specifically delegates to Convocation the power to make by-laws relating to a code of professional conduct and ethics, as well as guidelines for professional competence: s. 62(0.1)10 and s.62(0.1)11. Any decision from the appeal of the Costs Decision will not interfere with Convention’s function in this regard. The appeal of the Costs Decision seeks clarity of these rules and guidelines. Convocation is free to amend its code or guidelines at any time after this appeal.

29Also, Sidlofsky has been advised by the Canadian Judicial Council that this is a matter for the courts to determine.

C. Position of Blake

30In opposition to this motion, Blake makes several arguments. First, if this appeal is allowed, Blake argues that Sidlofsky is asking that the court make new findings of fact, or “re-write” history. Blake argues that the court should take a cautious approach to its fact-finding powers.

31As shown in the Amended Notice of Motion, there is no motion before me to admit fresh evidence. When Sidlofsky makes that motion, Blake is free to oppose the relief sought.

32Also, Blake argues that the outcome of this appeal may have an impact on the Collection Action. This is true, but Blake has an opportunity to participate in the appeal is he so wishes, so as to protect his position in the Collection Action. If an amendment of his pleadings in the Collection Action are required, the usual analysis under r. 26 will come into play.

IV. Conclusion

33For the foregoing reasons, I make the following orders:

a) Gregory Sidlofsky is granted leave to intervene as a party to this appeal notwithstanding its mootness;

b) Gregory Sidlofsky’s status as an intervenor in this appeal is limited to the following issues:

1. Are the findings of the Motion Judge about the professional conduct of the proposed intervenor proper and supported by the evidence?

2. What is the extent of a lawyer’s duty to the court, including when a matter has been argued and remains under reserve?

3. Should there be costs consequences for a client if his or her lawyer has breached his or her duty to the court?

c) Amicus curiae shall be appointed to argue the appeal from the adverse position to Gregory Sidlofsky, and the Lawyers’ Professional Indemnity Company shall be responsible to pay amicus’ fees and disbursements; and

d) Neither party shall be paid their costs of this motion.

Fowler Byrne J.