DATE: 20001220

DOCKET: C35347

COURT OF APPEAL FOR ONTARIO

RE: ANTONIO DRUMONDE (Plaintiff (Appellant)) v. NICOLAU MONIZ AND DIONISIA MONIZ (Defendants (Respondents))

BEFORE: McMURTRY C.J.O. (In Chambers)

COUNSEL: Gregory M. Sidlofsky

For the appellant

L. A. von Bogen

For the respondents

HEARD: DECEMBER 7, 2000

On appeal from the Certificate of Assessment Officer Michael Kane dated October 30, 2000.

E N D O R S E M E N T

[1] The appellant in this appeal, was successful in a one-day trial in the Superior Court of Justice, in 1994, involving a minor property dispute. The judgment was set aside on appeal to this Court on December 1, 1997 and the plaintiff was ordered to pay the defendants’ party and party costs of the trial and the appeal. On January 9, 1998, after having received and considered the parties’ written submissions, Austin J.A. issued supplementary reasons with respect to costs.

[2] Pursuant to the December 1, 1997 order of this Court, on October 30, 2000, Assessment Officer, Michael Kane assessed costs. The appellant seeks to set aside the Certificate of Assessment issued by the Mr. Kane, on October 30, 2000, and have it sent back for reassessment on the ground that Mr. Kane failed to base his assessment of costs on proper documentary evidence and in particular time dockets.

[3] The submission of the appellant on this appeal relates to the decision of Austin J.A. in Charleston Partners v. Dickinson, [1996] O.J. No. 1552 (C.A.) arguing that that decision stands for the proposition that in an assessment of costs, recovery for amounts not substantiated by documentary evidence including dockets will be disallowed.

[4] In Charleston Partners v. Dickinson, the defendant, Mrs. Dickinson, was awarded solicitor and client costs. In his decision, Austin J.A. in para 7 stated as follows:

Turning to item 4, the vast bulk of the bill of costs was made up of lump sum claimed for fees with no documentary foundation whatever. The Assessment Officer was clearly correct in declining to allow them.

In my view, this passage must be read in the context of the specific factual circumstances of the case before Austin J.A. In Charleston Partners v. Dickinson, Ms. Dickinson, had chosen to retain and dismiss a long list of counsel in connection with the appeals. Austin J.A.’s comments were made in the context of real uncertainty as to whether the Ms. Dickinson had even retained the services of the solicitors whose costs she was claiming or if the legal work for which she was seeking compensation was necessary to the proper presentation of the case.

[5] In my view, the reasons in Charleston Partners v. Dickinson are not applicable to the facts in this appeal. In the matter before me, the parties agree that the defendants’ solicitor acted for the defendants from the commencement of the action and on the appeal in 1998. He is the only solicitor of record for that party and there is, therefore, no issue of duplication of costs for services or the necessity of the legal services.

[6] The respondent on this appeal points to a line of authority standing for the proposition that the discretion of the Assessment Officer to award costs should not be interfered with by an appellate court unless there has been an error in principle, or where the amount is so grossly large as to be beyond all question improper. See Kelleher, Hoskinson v. Knipfel (Executors of the Estate of) (1982), 1982 3319 (ON CA), 37 O.R. (2d) 92 (C.A.) and Dical Investments Ltd. v. Morrison (1993), 13 C.P.C. (3d) 305 (Gen. Div).

[7] The amounts awarded on the assessment in this case were relatively modest given the fact that there was a trial and appeal and the appellant has failed to establish an error in principle in the Assessment Officer’s assessment.

[8] Accordingly, this appeal is dismissed with costs.

“McMurtry C.J.O.”