COURT OF APPEAL FOR ONTARIO
DATE: 20000628
DOCKET: C33854
RE: JULIO ACUNA, VENNY ANA ACUNA, BAYARDO THOMAS ACUNA,
CARMEN LUISA VITERI, CHRISTINA PENAFIEL VITERI,
ENRIQUE PIO HERRERA, ISAAC ERASMO HERRERA personally,
HENRY KENDAL HERRERA a minor under the age of 18
years by his Litigation Guardia ENRIQUE PIO HERRERA,
MOIRA VINYETH HERRERA, a minor under the age of 18
years by her Litigation Guardian, ENRIQUE PIO HERRERA
(Plaintiffs/Appellants in Appeal) –and– MICHAEL LOTHAR
HUNZE (Defendant/Respondent in Appeal)
BEFORE: McMURTRY C.J.O., MORDEN and CATZMAN JJ.A.
COUNSEL: Philip M. Epstein, Q.C., for the appellant
Todd J. McCarthy, for the respondent
HEARD: June 26, 2000
On appeal from the order of Greer J. dated February 17, 2000.
E N D O R S E M E N T
[1] Madam Justice Greer erred in holding that she was functus
with respect to the motion under rule 37.14 to set aside her
earlier order. She further erred in holding that there were no
grounds on which her earlier order should be set aside.
[2] The uncontradicted evidence before her disclosed that:
• Mr. Elkin had suggested that the outstanding costs be paid
• out of the appellant’s recovery at the conclusion of trial
• but that, if Mr. Dow insisted on payment of the costs
• forthwith, Mr. Elkin’s firm would pay them;
• Mr. Dow advised Mr. Elkin that he would seek instructions
• and would get back to Mr. Elkin; and
• following that conversation, Mr. Elkin never received any
• further demand for payment of costs nor was there any further
• discussion regarding costs.
On that state of the evidence, the order under appeal ought not
to have been made.
[3] The appeal is allowed, the order of Madam Justice Greer is
set aside and in its place an order will go for the relief sought
by the appellant on the motion. The appellant is entitled to
payment forthwith of her costs of the motion and of this appeal,
each of which is fixed, in accordance with the figures agreed by
counsel, in the sum of $5,000.
Signed: “R.R. McMurtry C.J.O.”
“J.W. Morden J.A.”
“M.A. Catzman J.A.”