Court of Appeal for Ontario

Date: 2018-04-23 Docket: M48284 (C61429)

Judges: Epstein, Hourigan and Paciocco JJ.A.

Between

Matthew Weenen Plaintiff (Respondent/Responding Party)

and

Graziano Biadi Defendant (Appellant/Non-Party)

Counsel

For the moving party, Fasken Martineau DuMoulin LLP: Sarah Turney and Anastasia Reklitis

For the responding party, Matthew Weenen: Yan David Payne

Heard: In writing

Costs Endorsement

[1] On March 21, 2018, we dismissed the motion of Fasken Martineau DuMoulin LLP (the "Law Firm") for a charging order under s. 34(1) of the Solicitors Act, R.S.O. 1990, c. S.15, or a lien under the court's inherent jurisdiction, charging the damages and costs awarded to the responding party client, Matthew Weenen, at the trial of this action and on appeal. On March 29, 2018, the Law Firm wrote to the panel asking for an opportunity to make submissions in favour of a reconsideration of the decision. We denied this request in an addendum dated April 9, 2018.

[2] The issue now is the costs of both the motion and the request for reconsideration.

[3] We have received and reviewed the parties' submissions as to costs.

[4] Mr. Weenen seeks substantial indemnity costs of $25,214.42. Among other arguments advanced, Mr. Weenen says that given the lack of supporting evidence, the motion was without merit. Mr. Weenen also submits that the Law Firm continues to deliberately attempt to burden him with additional costs.

[5] The Law Firm's position is that no costs should be awarded; alternatively, costs should be fixed in the aggregate amount of $2,500. The Law Firm advances three arguments to support this position: (i) that the issue of the charging order or lien was novel and of public importance; (ii) that the jurisdiction issue was directed to be addressed by this court by Brown J.A.; and (iii) that the costs sought by Mr. Weenen are unreasonable. The Law Firm also seeks an order permitting it to set off any cost award against the legal fees owed to it by Mr. Weenen.

[6] Mr. Weenen is entitled to his costs. However, we do not see any grounds for awarding costs on a substantial indemnity basis.

[7] The amounts claimed by Mr. Weenen appear high, but we note that the Law Firm did not produce its own bill of costs.

[8] Accordingly, taking the various factors set out in r. 57.06 into account, we award costs to Mr. Weenen in the amount of $12,000, inclusive of interest and HST. We refuse the Law Firm's request that these costs be set off against legal fees associated with the underlying action, given that the amount, if any, that will be owing to the Law Firm after the pending assessment is not yet known.

"Gloria Epstein J.A."

"C.W. Hourigan J.A."

"David M. Paciocco J.A."