Court of Appeal for Ontario

Date: 2018-03-16

Docket: M48840 (C64908)

Motions Judge: Fairburn J.A.

Between

Hampton Securities Limited Appellant (Moving Party)

and

Christina Nicole Dean Respondent (Responding Party)

Counsel

For the moving party: Sara J. Erskine and David Barbaree

For the responding party: Christopher J. Somerville and Daphne Hooper

Heard: February 27, 2018

Costs Endorsement

[1] On March 2, 2018, I dismissed the appellant's motion for a stay pending appeal of a mandatory order to amend a Notice of Termination filed with the Investment Industry Regulatory Organization of Canada: Hampton Securities Ltd. v. Dean, 2018 ONCA 216. The court invited written costs submissions. The submissions have been received and reviewed. The parties are agreed that costs should be fixed in the amount of $3,500.00. They part company on the entitlement to costs.

[2] The respondent maintains that she was successful on the motion and that costs should be paid in the normal course, within 30 days.

[3] The appellant advances four reasons for why it says that the entitlement to costs should be left to the panel hearing the appeal. The appellant's reasons are catalogued in italics below, along with my reasons for rejecting them. The appellant maintains as follows:

(1) If the appellant succeeds on appeal, it will demonstrate that the mandatory order to amend was made in error.

This reasoning conflates the success on a motion with the merits of an appeal. Parties do not enjoy ex post facto success on a motion only because they succeed on appeal. If this position were to be accepted, then all costs arising from motions would await the outcome of the appeal. The success of the motion is assessed at the time that the motion is decided. The respondent was clearly successful on this motion.

(2) The appellant had to bring the motion out of concern that the appeal would be rendered moot if it failed to do so. By bringing the motion, the appellant argues that they now know that the appeal is not moot.

The appellant's concern about mootness was unfounded and the issue was decided against them. In any event, there was no need for a pre-emptive order dealing with this issue. Even if the respondent raised a concern about mootness during the appeal proper, the appellant could have responded to the argument then.

(3) The appellant argues that the respondent's counsel made inappropriate allegations about the appellant and the appellant's counsel and that the court should distance itself from the respondent's counsel's conduct.

Although I recall a brief comment during oral submissions of the variety alleged, the court interjected immediately and counsel moved on. As for the respondent's comments about the appellant, they are rooted in the trial judge's findings of fact.

(4) The appellant relies on a suggestion that the respondent has disclosed an arrangement with her counsel whereby her counsel only collects fees when court orders are paid. Embedded in this argument seems to be a suggestion that because the respondent will not be out of pocket if the costs are not paid, there is no rush to pay them.

This argument is without merit. Regardless of the arrangements between counsel and client, counsel need to be paid for their work.

[4] There is no reason to delay the payment of costs. Accordingly, the respondent is entitled to her costs of the motion fixed at $3,500 to be paid within 30 days of the date of this order.

"Fairburn J.A."