COURT OF APPEAL FOR ONTARIO

DATE: 2004-09-28

DOCKET: C40583

RE:

LESLIE ADAM and DR. ROGELIA ADAM (Plaintiffs/ Appellants) -and- MICHIE T. GARLAND and HUGHES, ARCHER, DORSCH, GARLAND (Defendants/Respondents)

BEFORE:

CATZMAN, DOHERTY and ARMSTRONG JJ.A.

COUNSEL:

Guy Hunter

for the appellants

Helder M. Travassos and Sylvia Samuel

for the respondents

HEARD AND ENDORSED:

September 27, 2004

On appeal from the order of Justice Donald S. Ferguson of the Superior Court of Justice dated June 25, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] We see no merit in the allegation of reasonable apprehension of bias, either in the trial judge’s decision to preside over the trial (after having secured the consent of the appellants that he do so), or in the manner in which he conducted the trial that ensued.

[2] With respect to the allegations of solicitor’s negligence, the findings of fact made by the trial judge, which were supported by the evidence, effectively preclude a finding of negligence on the part of the respondents.

[3] We called upon counsel for the respondents only with respect to the costs that were awarded by the trial judge. We are satisfied that, having regard to the manner in which the appellants conducted the trial and the nature of the allegations made by them against the respondents, costs on a substantial indemnity basis were appropriately ordered. But we accept the appellants’ submission with regard to the quantum of such costs and we would reduce the figure to $35,000, the amount suggested by counsel for the appellants.

[4] Leave to appeal costs is granted and the amount of costs awarded is reduced as indicated. The appeal is otherwise dismissed.

[5] In view of the divided success of the parties to this appeal, we would make no order as to costs of the appeal. An order will go releasing to counsel for the respondents all monies now standing in court to the credit of this action.