The Law Society of Upper Canada v. Igbinosun, 2009 ONCA 767

CITATION: The Law Society of Upper Canada v. Igbinosun, 2009 ONCA 767

DATE: 2009-11-04

DOCKET: C49751 and C49744

COURT OF APPEAL FOR ONTARIO

Weiler, Gillese and Watt JJ.A.

BETWEEN

The Law Society of Upper Canada

Appellant/Respondent

and

Matthew Joseal Igbinosun

Respondent/Appellant

Counsel: Brian Gover and Katherine Hensel for the appellant/respondent Tracey Tremayne-Lloyd and Elyse Sunshine for the respondent/appellant

Heard: May 4, 2009

On appeal from the order of the Divisional Court (Justices John R. R. Jennings, Romain W. M. Pitt and Anne M. Molloy) dated July 18, 2008 and reported at (2008), 2008 ON SCDC 36158, 239 O.A.C. 178.

COSTS ENDORSEMENT

[1] Following the hearing of this appeal, the court invited the parties to make submissions with respect to costs including the costs reserved by Gillese J.A., in the event they could not agree. The parties were unable to agree and we have now received written submissions respecting costs.

[2] Having considered these submissions we are of the opinion that costs of the proceedings ought not to be on an elevated scale but on a partial indemnity scale. See Hunt v. Toronto Dominion Securities, 2003 ONCA 48369, [2003] 40 B.L.R. (3d) 156 (Ont. C.A.) at para. 6, leave to appeal to S.C.C. dismissed, with costs, [2003] S.C.C.A. No. 473; Davis v. Clarington (Municipality), 2009 ONCA 722, at paras. 29-31.

[3] The Law Society submits that no costs should be paid to Mr. Igbinosun for the proceedings before the Law Society Appeal Panel, because he was, and remains, largely unsuccessful with respect to the grounds he raised before that Panel. Of the many grounds of appeal raised, Mr. Igbinosun abandoned five in subsequent appeals and was unsuccessful in two others. He succeeded with respect to the refusal to grant him a brief adjournment as well as the ground alleging he received insufficient notice of the penalty phase of the hearing. While we agree that Mr. Igbinosun unnecessarily incurred costs and complicated the proceedings by the multiplicity of unfounded grounds he raised, we are of the opinion that in view of his success he is entitled to a modest award of costs respecting the proceedings before the Appeal Panel. We would fix those costs at $10,000, all inclusive.

[4] With respect to the costs of the stay motion before the Divisional Court on which Mr. Igbinosun succeeded, we agree with the Law Society that those costs should be fixed at $10,000 all inclusive. These costs are to be set off against the costs of $4,000 awarded to the Law Society respecting Mr. Igbinosun’s unsuccessful motion for disclosure heard on February 26, 2008.

[5] In relation to the costs of the appeal before the Divisional Court we agree with the Law Society that Mr. Igbinosun achieved only a partial success and that an appropriate amount for the appeal is to award him costs of $20,000, all inclusive.

[6] Insofar as the proceedings before this Court are concerned, we would make no order as to costs of the motion and cross motion for leave to appeal as both parties were successful in obtaining leave. We would fix the costs of the appeal before this Court in the amount of $25,000, all inclusive.

[7] Having regard to the above, we order that the Law Society pay to Mr. Igbinosun the sum of $61,000, all inclusive.

"K.M. Weiler J.A."

"E.E. Gillese J.A."

"David Watt J.A."