Healthy Lifestyle Medical Group Inc. et al. v. Chand Morningside Plaza Inc. et al.; Klaiman et al., Intervenors
[Indexed as: Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc.]
Ontario Reports
Court of Appeal for Ontario
Strathy C.J.O., Lauwers and Zarnett JJ.A.
March 28, 2019
145 O.R. (3d) 316 | 2019 ONCA 248
Case Summary
Civil procedure — Appeals — Court of Appeal allowing appellants' appeal from summary judgment against them — Court declining to award enhanced costs to appellants or to make opposing counsel personally liable for costs on basis that respondents failed to ensure that amended statement of defence was in appeal book — Court nevertheless rejecting respondents' argument that there is no obligation on opposing party to determine whether appellant has omitted any portion of record from its appeal materials — Counsel for all parties to appeal having obligation to provide court with any material necessary for full appreciation of matter under appeal.
The Court of Appeal allowed the appellants' appeal from summary judgment against them. Had the intervenors not set the record straight, the appeal would have proceeded on the basis that the motion judge did not have the amended statement of defence before her. Counsel for the appellants sought enhanced costs and an order making opposing counsel personally liable for costs on the basis that counsel for the respondents misled the Court of Appeal by failing to ensure that the amended statement of defence was in the appeal book.
Held, the costs orders sought by the appellants should not be granted.
There was no basis on which to award enhanced costs to the appellants, nor to make opposing counsel personally liable for them. However, counsel for the respondents' submission that there is no legal obligation on an opposing party to review the entire record below to determine whether the appellant has omitted anything from its appeal materials was rejected. The Rules of Civil Procedure, R.R.O. 1990, Reg. 194 oblige the parties and their counsel to ensure that the court has before it all of the material necessary for a full appreciation of the matter under appeal.
Cases Referred To
Rules and Regulations Referred To
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04(1), 61.10, 61.10.1, (f), 61.12(7)
Authorities Referred To
Bell, Robert, and Caroline Abela, A Lawyer's Duty to the Court (undated)
APPEAL
From the judgment of Pollak J. of the Superior Court of Justice, dated January 3, 2017.
Paul Robson and Karanpaul Randhawa, for appellants.
Jonathan L. Rosenstein, for respondents.
Scott Hutchison and Lauren Mills Taylor, for intervenors.
Decision
[1] Costs endorsement of the court: -- The context for this costs endorsement is set out in the court's decision in this matter reported at [2019] O.J. No. 111, 2019 ONCA 6. The motion judge granted summary judgment against the appellants in the amount of about $950,000. We allowed the appeal and said [at para. 10]:
In all the circumstances of this case, including the contentious issues of fact and law raised by the appellants, we allow the appeal, set aside the judgment and direct that the matter proceed to trial on all issues, without prejudice to the rights of the parties to file amended pleadings and to seek further relief under the Rules . . .
The Cost Submissions of Counsel
[2] In his cost submissions, Mr. Robson, counsel for the appellants, seeks costs for the following: the motion for summary judgment, in the full indemnity amount of $7,000; the motions before this court, on a substantial indemnity basis in the amount of $10,760; and the appeal, on a substantial indemnity basis in the amount of $40,116.60. (We infer that these numbers include disbursements and HST.)
[3] Mr. Robson's request for the enhanced levels of costs recovery is based on his allegation that counsel for the respondents misled this court by failing to ensure that the amended statement of defence was in the appeal book. This was the pleading on which the appeal turned. Mr. Robson submits that the intervenors should share liability for costs with the respondents, on the basis that their lack of co-operation in producing their litigation file led to the omission of the amended statement of defence from the appeal book. He further submits that all opposing counsel should pay these costs personally.
[4] Mr. Rosenstein, counsel for the respondents, argues that there should be no award of costs to the appellants on the basis that it was the intervenors' argument that won the appeal. He submits, in the alternative, that the appellants should receive only nominal costs in the amount of $750, and in the further alternative, that costs before the motion judge be reserved to the trial judge, leaving only the appeal costs to be determined by this court. He also notes that the costs of motions before this court were awarded in each disposition. The exception is a motion heard by Trotter J.A. to reinstate an urgent stay relating to the enforcement of the mortgage. He granted the stay and set out a time line for the proceedings, reserving the costs to this panel.
[5] Mr. Hutchison, counsel for the intervenors, submits that no costs should be awarded against the intervenors in favour of the appellants, and he does not seek costs.
Discussion
[6] Mr. Rosenstein denies any impropriety and submits that counsel for the appellants had the amended statement of defence in his possession before the argument of the appeal, but chose strategically not to include it in the appeal book or to provide a separate copy to the court in order to better argue that the intervenors had provided ineffective assistance to the appellants.
[7] In our view, neither Mr. Robson nor Mr. Rosenstein displayed exemplary conduct, and we see no basis on which to award enhanced costs to the appellants, nor to make opposing counsel personally liable for them. In the result, we reverse the partial indemnity award of costs for the summary judgment motion, and award costs in favour of the appellants against the respondents in the same amount. Because the appellants were successful, we follow the ordinary rule and award costs for the appeal on a partial indemnity basis in favour of the appellants against the respondents in the all-inclusive amount of $5,000, and an additional $2,000 for the motion heard by Trotter J.A. We award no costs against or in favour of the intervenors.
The Duties of the Parties and Counsel to the Court
[8] While this is sufficient to dispose of the award of costs, we feel compelled to address an issue that arose in the cost submissions.
[9] Mr. Rosenstein took this position in his costs factum:
There is no legal obligation on an opposing party, much less opposing counsel, to review the entire record below to determine whether, and if so what, has been omitted by the appellant from its appeal materials.
Further, assuming that the opposing party does at some later point realize that any portion of the record below has been omitted by the appellant, there is no basis upon which to require that the respondent has an affirmative obligation to supplement the record in a manner which assists the appellant.
[10] We reject this excessively adversarial position. In our view, the issue here is not about requiring one party to assist the other, it is about counsel ensuring that the pleadings before the lower court which are germane to the issue on appeal are accurately put before this court.
[11] The Rules of Civil Procedure, R.R.O. 1990, Reg. 194, oblige the parties and their counsel to ensure that the court has before it all of the material necessary for the court to do justice. This is the intended result of the combined operation of rule 61.10 prescribing the appeal book and compendium, rule 61.12(7) prescribing the respondent's compendium, and rule 61.10.1 prescribing the exhibit book.
[12] Rule 61.10(1)(f) obliges the appellant to include the relevant pleadings in the appeal book and compendium. No correlative duty is placed on the respondent. There is therefore a wisp of technical support for Mr. Rosenstein's assertion, although not more than a wisp. When, for whatever reason, the appellant omits from its materials a pleading central to the decision below and the appeal, a respondent should correct this and not make arguments on the basis that the record before the lower court was different than it actually was. And when an appellant learns that its materials omitted such a pleading it should seek leave to correct the record and revise its materials, not persist in the original error. To view the matter otherwise would be to adopt an unduly technical view of the duty of counsel.
[13] These rules instantiate the foundational "philosophical mandate" of the Rules, which is found in rule 1.04(1):
1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
[14] The Manitoba Court of Appeal rightly held: "[C]ompliance with the Rules is desirable not as a pedantic exercise, but as a means of properly informing the Court of the relevant facts, of directing the Court's attention to the evidence relied upon and of defining the issues to be argued": Kingswood Estates Inc. v. Hildebrand, [1995] M.J. No. 645, 1995 CarswellMan 723 (C.A.), at para. 5.
[15] Even though ours is an adversarial system, its goal is to pursue truth in the interests of justice, in order to achieve the right result in the dispute for the right reason, according to law. There are many examples of ways in which rules and practices necessarily mitigate the adversarial nature of our system of justice.¹
[16] There is no doubt that had this appeal proceeded on the basis that the motion judge did not have before her the amended statement of defence, which was the basis put forward by both the appellant and the respondent until the intervenors set the record straight, and not revised by the appellant until during oral argument, this court would have been tacitly misled on what the motion judge had before her and on the proper interpretation of her decision. This cannot be countenanced.
[17] A party to an appeal, led by counsel, has the obligation to provide to the court any material necessary for the court to have a full appreciation of the matter under appeal, whether or not the material supports the party's position. In this appeal neither counsel took this obligation seriously enough after becoming aware that the amended statement of defence had been omitted from their respective appeal materials.
Order
Order accordingly.
Notes
¹ Robert Bell and Caroline Abela, A Lawyer's Duty to the Court (undated), online: The Advocates' Society https://www.advocates.ca/Upload/Files/PDF/Advocacy/InstituteforCivilityandProfessionalism/Duty_to_Court.pdf, at pp. 5 and 7.
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