MAN CHENG FONG, FAT LEONG KUAN, KUN CHOK CHIANG, WUN MAN VONG, MOON LAM MAK and RONALD FOOK YUI FUNG (Plaintiffs/Respondents in appeal) –and– KAM CHEUNG CHAN, also known as KAM CHAN, DIANE CHAN, THOROLD INN LTD., 937555 ONTARIO INC., 937556 ONTARIO INC., MURCK HOLDINGS LTD., 937559 ONTARIO INC., LIGHTING UNLIMITED CORPORATION LIMITED and L.U. FIXTURES INC., carrying on business as LIGHTING UNLIMITED, 881062 ONTARIO LIMITED, L.U. REALTY INC., HEART LAKE LIGHTING CORPORATION, 932379 ONTARIO LIMITED, SOLID PLATINUM INVESTMENTS LIMITED, KEN LI, 896236 ONTARIO LIMITED and STEVEN MUCHA and CHANWARD INVESTMENTS LIMITED, YU FASHIONS LIMITED, 881092 ONTARIO INC., 903826 ONTARIO INC. AND 903845 ONTARIO INC. (Defendants)
C34869
April 23, 2001
A simple motion to remove a firm of solicitors from the record has generated three appeals to this court, each concerned only with costs. In this third appeal, Genest Murray appeals the certificate of assessment of Mr. Kane dated July 21, 2000, which assessed Genest Murray’s party-and-party costs of the first appeal to this court dated February 14, 1997. Before me Genest Murray seeks an order:
(1) setting aside the certificate of assessment;
(2) directing a Master to reassess Genest Murray’s costs in accordance with this court’s reasons in the second appeal dated December 8, 1999;
(3) directing the Master on the reassessment:
(a) to assess Genest Murray’s costs of the assessment hearings held before Mr. Kane on September 8, 1998 and December 15, 1998 on a party-and-party basis; and
(b) to assess Genest Murray’s costs of the third assessment hearing (and related objections) before Mr. Kane on March 6, 2000 on a solicitor-and-client basis;
(4) requiring the respondents and their solicitors Elliot and Kim to pay both Genest Murray’s costs of this appeal and of the reassessment before the Master on a solicitor-and-client basis;
(5) directing the same Master to reassess Genest Murray’s costs of the second appeal to this court dated December 8, 1999.
Much of the relief sought by Mr. Murray on behalf of Genest Murray is not contested. Mr. Orkin, with his customary candour, has acknowledged that the certificate of assessment of Mr. Kane and his supporting reasons are “fatally flawed”. Mr. Orkin accepts that the certificate of assessment must be set aside and a new assessment ordered. Indeed, all that is in dispute before me are items 3(b) and 4 of the relief claimed. Mr. Orkin says that this court should not make an order for costs for the future reassessment before the Master and that the costs of this appeal and the costs of the third assessment before Mr. Kane should be on a party-and-party basis, not on a solicitor-and-client basis. Moreover, he contends that Elliot and Kim should not be responsible for Genest Murray’s costs.
I will deal briefly with the undisputed claims for relief. I agree that the certificate of assessment of Mr. Kane cannot stand. Without reasons and without proper objections from Elliot and Kim he reduced the amount he had orally assessed by allowing nothing for disbursements and nothing for the costs of the assessments. He also allowed nothing for Mr. Rouleau despite the reasons of this court.
I also agree with counsel that, in the light of the protracted history of these proceedings, a Master should reassess Genest Murray’s bill.
After this appeal was argued before me, Mr. Murray wrote to say that both he and Mr. Orkin agreed that the assessment of costs of the second appeal (December 8, 1999) then under reserve by assessment officer Moquin also be reassessed before the same Master hearing the reassessment of the costs of the first appeal. Mr. Murray so advised Ms. Moquin but she has apparently delivered her reasons, dismissing Genest Murray’s objections and confirming her report. Nevertheless, both counsel still submit that a reassessment should take place, if for no other reason than to preclude a fourth appeal to this court. I agree with this submission. The benefit in having a single Master deal with these related assessments afresh is obvious.
I turn now to the disputed items.
(i) These costs of the third assessment before Mr. Kane on March 6, 2000 and related objections (item 3(b))
Mr. Orkin acknowledges that Genest Murray is entitled to its costs of this assessment. The dispute is whether they should be a party-and-party or a solicitor-and-client scale. In my view, they should be on a solicitor-and-client scale. The reply to objections delivered by Elliot and Kim on behalf of the respondents was not a proper reply. It raised objections for the first time and out time. It included a section on the costs of the assessment, which may reasonably be viewed as a request to the assessment officer to ignore the reasons of this court. The reply appears to have influenced the final decision of the assessment officer, which the respondents now concede is flawed. In these circumstances, I think, in fairness, the respondents should pay the costs of this assessment on a solicitor-and-client basis. I do not think it is an appropriate case, however, to make an order against the law firm.
(ii) The costs of the future reassessment before the Master (item 4)
Whether Genest Murray is entitled to an order for the costs of the reassessment before the Master turns on what my colleague Sharpe J.A. intended in his reasons of December 8, 1999, when he wrote that “the appellant [Genest Murray] is also entitled to costs of the Assessment and of the appeal.” [Emphasis added.] In my view, he intended to award Genest Murray only its costs of the assessment hearings that had already taken place, not the costs of a future reassessment. See Hamilton-Wentworth (Regional Municipality of Hamilton) v. Hamilton-Wentworth Save the Valley Committee Inc. (1988), 1985 CanLII 1957 (ON SC), 19 D.L.R. 356 (Ont. Div. Ct.). That previous assessment, held on two hearing days – September 8 and December 18, 1998 – led to the certificate of February 15, 1999, which was appealed and was the subject matter of the panel’s costs order. That Sharpe J.A. did not intend to fetter the discretion of the assessment officer or a Master on a reassessment is evident from his observation that the amounts claimed for salaried associates, articling students and partners still had to be shown to be reasonable.
(iii) The costs of this appeal (item 4)
Genest Murray is entitled to its costs of this appeal to be paid by the respondents. Those costs should be paid on a party-and-party scale. I find no justification for solicitor-and-client costs, especially in the light of Mr. Orkin’s cooperation in narrowing the issues in dispute, or for requiring Elliot and Kim to pay these costs. These costs should also be assessed by the Master conducting the two reassessments.
Therefore:
I order that the certificate of assessment of Mr. Kane dated July 21, 2000 be set aside;
I direct a Master:
(a) to reassess Genest Murray’s costs of the first appeal (February 14, 1997) in accordance with this court’s reasons on the second appeal (December 8, 1999);
(b) to assess Genest Murray’s costs of the assessment hearings before Mr. Kane on September 8 and December 18, 1998 on a party-and-party basis and the assessment hearing before Mr. Kane on March 6, 2000 (and related objections) on a solicitor-and-client basis;
(c) to reassess Genest Murray’s party-and-party costs of the second appeal (December 8, 1999); and
(d) to assess Genest Murray’s party-and-party costs of this appeal.
- The costs of these assessment and reassessments shall be in the discretion of the Master.
I am grateful to counsel for their submissions in this rather complicated case. I apologize to the parties for the delay in releasing this decision.
Signed: “John Laskin J.A.”