DATE: 2001-12-11 DOCKET: C34005, C34006, C34007, C34008
COURT OF APPEAL FOR ONTARIO
LASKIN, GOUDGE and FELDMAN JJ.A.
B E T W E E N:
THE SOCIETY OF LLOYD'S
Alan Lenczner Q.C., Sheila Block and Glenn Smith for the Appellants
Applicant (Respondent in Appeal)
- and -
GERHARD EMIL MEINZER, also known as G.E. MEINZER
Harvey Chaiton, Mark Hartman and George Benchetrit for the Respondent
Respondent (Appellant in Appeal)
B E T W E E N:
THE SOCIETY OF LLOYD'S
Applicant (Respondent in Appeal)
- and -
PAUL F. SAUNDERS, also known as P.F. SAUNDERS
Respondent (Appellant in Appeal)
B E T W E E N:
THE SOCIETY OF LLOYD'S
Applicant (Respondent in Appeal)
- and -
ALLAN MILTON PAUL SMART, also known as A.M.P. SMART
Respondent (Appellant in Appeal)
B E T W E E N:
THE SOCIETY OF LLOYD'S
Applicant (Respondent in Appeal)
- and -
DONALD ELMER STRINGER, also known As D.E. STRINGER
Respondent (Appellant in Appeal)
COSTS
FELDMAN J.A.:
[1] The reasons for judgment dismissing the appeal provided that costs would follow the event unless counsel wished to bring to the attention of the court any basis for a different disposition. The parties have made submissions with respect to the costs disposition on this appeal.
[2] The appellants made three submissions with respect to costs:
(1) There should be no order of costs against them either on appeal or below for two reasons:
(a) the appellants agreed to a procedure where they all joined together in one proceeding which had the effect of shortening and streamlining the litigation and thereby reducing Lloyds’ costs;
(b) the case involved a novel point of law in respect of the definition and application of “public policy” in the context of enforcement of foreign judgments.
(2) If costs are awarded against the appellants, they should be on a several, pro rata basis only and not a joint and several basis. The costs order below should be modified in the same way. The appellants are unrelated to each other and each had separate contracts with Lloyds. Without this procedure Lloyds would have to have litigated separately with each of them. If Lloyds chose to enforce the costs order against the appellant most able to pay, the result would be an onerous and unfair one for that appellant. An order of joint and several liability for costs could militate against use of this expeditious procedure in future cases.
(3) Four of the appellants should in any event have no costs ordered against them, because the judgments against them have been satisfied by Lloyds with funds available to them in England, but which Lloyds declined to apply to the judgments until after the argument of the appeal.
[3] The respondent’s position is that costs on the appeal be awarded to the respondent against the appellants on a joint and several basis.
(1) The respondent disputes the novelty of the public policy argument and relies on the fact that the appellants raised two other grounds of appeal which were not novel points of law.
(2) The respondent states that the joint and several award is justified because the appellants joined together and were represented by the same counsel, and it would be inequitable and unfair to Lloyds to compel it to pursue each appellant for that person’s share of the costs.
(3) The four appellants whose judgments have now been satisfied did join in the appeal. Therefore they should be responsible for costs. In respect of the costs below, as this issue was raised after oral argument of the appeal and was dealt with in the appeal judgment, that request is now foreclosed.
[4] The submissions of the appellants with respect to the novelty of one of the legal issues raised, and the efficiency of the procedure used, are in my view not sufficient grounds for this court to depart from the normal rule that costs of the appeal follow the event.
[5] The costs against the appellants should be on a several basis, pro rata, not joint and several. Although the appellants joined together, they were defending a claim, not bringing one, as in the cases of King v. On-Stream Natural Gas Management Inc. (1993), 21 C.P.C. (3d) 16 (B.C.S.C.), Liu v. Sung (1995), 37 C.P.C. (3d) 44 (B.C.S.C.) and Filipovic v. Upshall, [1998] O.J. 4498 (Gen. Div.)). In Bossé v. Mastercraft Group Inc. (1995), 1995 CanLII 931 (ON CA), 123 D.L.R. (4th) 161 (Ont. C.A.), where a joint and several order of costs was made against the plaintiffs who were defendants by counterclaim on a successful motion for summary judgment, the order was only made on consent, and in giving effect to that consent, this court noted how onerous and potentially unfair it could be. In my view, there is no basis for the appellants to be penalized with an unusually onerous costs order in this case.
[6] Although the appellants’ initial submission sought a reversal of Swinton J.’s order on the joint and several issue in respect of the costs below, in their further submission, requested by the court, the appellants no longer sought that relief. In any event, I would not disturb the order of Swinton J., as it was not specifically appealed in this proceeding.
[7] I agree with the appellants that in the circumstances that occurred it would be just and fair that the four appellants whose judgments were satisfied while this case was under reserve should not bear any costs. No order of enforcement goes against them because their judgments have been satisfied. Had they been the only appellants, the case would have become moot while under reserve and in those circumstances, it is likely that no reasons would have issued in favour of Lloyds. However, as the issue of their costs below was raised while the case was under reserve and dealt with in the reasons, the costs order below against them will stand.
RESULT
[8] The appeal is dismissed with costs against the appellants (other than Louis Ceroni, Hugh Hendrie, Eric Lane and Jacqueline Levin) on a several basis, pro rata. Counsel for the appellants asked in written submissions that this court fix the amount of the costs at $7,500. The respondent declined to respond on the basis that the court had not asked for a suggested figure at which to fix the costs. I agree that the amount suggested by the appellants appears to be a reasonable one, and suggest that the parties try to resolve the amount by agreement. Otherwise the costs of the appeal are to be assessed.
Signed: “K. Feldman J.A.”
“I agree J. I. Laskin J.A.”
“I agree S.T. Goudge J.A.”
RELEASED: “JIL” DECEMBER 11, 2001