Authorson v. Canada (Attorney General), 2007 ONCA 599

CITATION: Authorson v. Canada (Attorney General), 2007 ONCA 599

DATE: 20070906

DOCKET: C41232

COURT OF APPEAL FOR ONTARIO

MOLDAVER, SHARPE and BLAIR JJ.A.

BETWEEN:

JOSEPH PATRICK AUTHORSON, deceased, by his Litigation Administrator, PETER MOUNTNEY and by his Litigation Guardian, LENORE MAJOROS

Plaintiff (Respondent/ Appellant by Cross-Appeal)

and

THE ATTORNEY GENERAL OF CANADA

Defendant (Appellant/ Respondent by Cross-Appeal)

Proceeding under the Class Proceedings Act, 1992

C. Scott Ritchie, Q.C., John C. Spencer, Donald J. Rennie, William Knights and Christine Mohr for the appellant

Raymond G. Colautti, Peter Sengbusch and Michelle Packer for the respondent

Heard: April 16-20, 2007 Reasons Released: July 4, 2007

On appeal from the judgments of Justice John H. Brockenshire of the Superior Court of Justice, dated December 22, 2003, December 31, 2004 and December 29, 2005.

COSTS

[1] We have received and reviewed the parties’ submissions on costs.

[2] The Crown seeks costs of the action against the Litigation Administrator, Peter Mountney, and Litigation Guardian, Lenore Majoros, but does so only to underpin an order requiring Class Counsel to indemnify the Litigation Administrator and Litigation Guardian for such liability and to pay the costs personally. The Crown states at paragraph 5 of its factum:

The Attorney General does not intend, however, to pursue recovery of its costs against the assets of the Plaintiff; rather, he makes this claim only as it is necessary to support a Rule 57.07 award of costs under Class Counsel.

[3] We would not give effect to the Crown’s request that Class Counsel be required to indemnify the Litigation Administrator and Litigation Guardian or be held personally liable for any costs assessed against them. While we found counsels’ conduct in pursuing the matter following the Supreme Court’s decision questionable, the trial judge accepted their arguments. In the circumstances, we are not persuaded that Class Counsels’ conduct constitutes bad faith or the type of conduct which cases such as Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3 at paras. 253-255 call for as founding an order for costs against a solicitor personally.

[4] The Crown’s claim for an order directing that Class Counsel reimburse the Litigation Administrator and Litigation Guardian for all costs recovered from them and further directing that Class Counsel shall personally pay the costs of the Attorney General of Canada is therefore dismissed. In view of that disposition, it is not necessary to make any further order respecting the costs of the appeal.

[5] It follows from our original order allowing the appeal that the cost orders of Justice Brockenshire dated September 28, 2006 and December 20, 2006 are set aside.

Signed: “M. J. Moldaver J.A.”

“Robert J. Sharpe J.A.”

“R. A. Blair J.A.”