DATE: 20020924
DOCKET: C37357

COURT OF APPEAL FOR ONTARIO

RE: GLENDA METZLER and JAMES METZLER (Applicants (Respondents in Appeal)) – and – STANLEY SHIER, Barrister & Solicitor, RICHARD McLEAN, THOMPSON, TOOZE, McLEAN & ELKIN, Barristers & Solicitors, JEROME MORSE and LERNER & ASSOCIATES, Barristers & Solicitors (Respondents (Appellants))

BEFORE: McMURTRY C.J.O., CARTHY AND GOUDGE JJ.A.

COUNSEL:
Philip M. Epstein, Q.C. For the appellant
Patrick Wymes For the respondent

HEARD: September 18 and 19, 2002

On appeal from the order of Justice John I. McIsaac of the Superior Court of Justice dated November 23, 2002.

E N D O R S E M E N T

Released Orally September 19, 2002

[1] [1] The application judge was faced with a very practical problem of where the assessment should take place, Newmarket or Toronto. Even within the parameters of the forum non conveniens doctrine, it was entirely reasonable for him to choose Newmarket. We would not interfere with his order to this effect.

[2] [2] As to the costs order, in our view, the application judge erred in fixing both the scale and the amount, without the appellants having an opportunity to be heard on what was being put against them. We would therefore grant leave, set aside the costs order and remit the issue of costs to the application judge or such other judge as he may direct for rehearing. We have absolute confidence that armed with the full record, the court will reach the appropriate result.

[3] [3] Costs to the respondent on a partial indemnity basis fixed at $8,000. Given the fact that there was divided success we are not prepared to award a greater amount.

"R.R. McMurtry C.J.O."

"J.J. Carthy J.A."

"S.T. Goudge J.A."