Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20230424 DOCKET: M54037 (COA-22-CV-0418) & M54017 (COA-22-CV-0312)

Roberts, Favreau and Copeland JJ.A.

BETWEEN

Harry Gefen Applicant (Respondent/Responding Party)

and

Henia Gefen, in her personal capacity and in her capacity as the Estate Trustee of the Estate of Elias Gefen, and Harvey Gefen Respondents (Appellants/Moving Parties)

Counsel: Benjamin Salsberg, for the moving party, Harvey Gefen Ronald B. Moldaver, K.C., for the moving party, Henia Gefen Aidan Fishman, for the responding party, Harry Gefen Archie Rabinowitz and Stacey Blydorp, for Shael Eisen, the litigation guardian and guardian of property of Henia Gefen Chris Graham, for the responding party, the Estate of Yehuda Gefen

Heard: April 14, 2023

Reasons for Decision

Review Motions

[1] The moving parties, Henia Gefen and Harvey Gefen, ask this court to review George J.A.’s dismissal of their motions to stay the order of the motion judge under appeal. Among other things, the motion judge declared Henia Gefen, who is 100 years old, to be incapable of managing her property and instructing counsel. The motion judge also appointed a litigation guardian and guardian of property on her behalf.

[2] Essentially, the arguments here are that George J.A. imposed too stringent a threshold for the “serious issue” branch of the stay pending appeal analysis, as well as misapprehended evidence in his consideration of the “irreparable harm” and “balance of convenience” stay criteria.

[3] We are not persuaded by these submissions.

[4] George J.A. carefully reviewed the motion judge’s lengthy and thorough reasons. He considered and applied the correct legal criteria for a stay pending appeal. Having balanced the relevant factors, he declined to stay any aspect of the motion judge’s order.

[5] As this court recently reiterated in Iqbal v. Mansoor, 2022 ONCA 198, at para. 2, “a panel review of [a single motion judge’s decision] is not a de novo hearing, but one that focusses upon whether the motion judge’s decision reflects legal error or a misapprehension of material evidence.” We see no such reversible error here.

[6] Accordingly, the review motions are dismissed.

Costs

[7] Although we delivered the above reasons for the dismissal of the review motions following the moving parties’ submissions on April 14, 2023, we reserved our decision regarding the disposition of costs. These are our reasons.

[8] The responding party, Harry Gefen, requests that partial indemnity costs, in the amount of $6,625.22, be awarded jointly and severally against Mr. Moldaver, Henia Gefen’s counsel, personally, as well as Harvey Gefen. The rationale for the requested costs award against Mr. Moldaver is, as set out in Harry Gefen’s Costs Outline, that “Mr. Moldaver’s continued insistence that he acts for Henia Gefen, notwithstanding that she has been declared incapable and he has been explicitly barred from acting as her counsel in this matter, was and is highly improper.” Prior to the hearing of the review motions, Harry Gefen’s counsel put Mr. Moldaver on notice that costs would be sought against him personally, pursuant to r. 57.07 of the Rules of Civil Procedure.

[9] Mr. Moldaver submits that an appropriate award of costs would be $3,500. His Costs Outline indicates partial indemnity costs incurred in relation to the review motion of $4,560.89. He argues against a personal costs order, pointing out that George J.A. declined to make such an order, and maintains that he was doing no more than properly safeguarding the rights of Henia Gefen, who had a right to be heard on this matter.

[10] Harvey Gefen submits that a costs award of $4,000 would be appropriate but does not assert that Mr. Moldaver should share joint and several personal liability for it. His Costs Outline sets out $5,850.72 in partial indemnity costs.

[11] All parties agree that no award of costs should be made against Henia Gefen.

[12] We start with the determination of the amount of costs that is fair, reasonable, and proportionate for the losing parties to pay. It is our view that Harry Gefen’s costs to respond to the review motions should be fixed at $5,000, inclusive of disbursements and applicable taxes. Even taking into account the additional work the moving parties may have had to do in bringing the motion, this amount is fair and reasonable and far less than the combined costs the moving parties would have sought if they had been successful.

[13] It is common ground that Harvey Gefen is responsible for Harry Gefen’s costs in relation to his unsuccessful review motion. The question is whether any order should be made personally against Mr. Moldaver in relation to the review motion that he purportedly brought on behalf of Henia Gefen.

[14] Rule 57.07(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 sets out the circumstances under which a lawyer for a party may bear liability for costs. The relevant provisions are as follows:

57.07(1) Where a lawyer for a party has caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default, the court may make an order,

(a) disallowing costs between the lawyer and client or directing the lawyer to repay to the client money paid on account of costs;

(b) directing the lawyer to reimburse the client for any costs that the client has been ordered to pay to any other party; and

(c) requiring the lawyer personally to pay the costs of any party.

[15] We do not agree that this is an appropriate case for ordering that Mr. Moldaver pay costs personally to Harry Gefen. Mr. Gefen’s motion did not add undue delay or expense to Harry Gefen because Harvey Gefen brought a similar motion. However, Mr. Moldaver should not be able to charge Henia Gefen any amounts for this motion given that he did not have authority to bring the motion and that accordingly there is no reasonable basis for him to charge her any fees for the motion.

[16] As earlier noted, Henia Gefen was declared to be incapable of managing her property and instructing counsel. As a result, a litigation guardian was appointed to represent her interests. Moreover, the order also provided that Mr. Moldaver was removed as Henia Gefen’s counsel and could no longer act for her. The motion judge ordered that Mr. Moldaver be responsible for a portion of the costs incurred by Henia Gefen as a consequence of pursuing an unattainable result and acting without the instructions of a competent client.

[17] George J.A. declined to order a stay of the motion judge’s order. He declined to order costs of the unsuccessful stay motion against Mr. Moldaver personally and stated:

As for who is responsible for the payment of Harry’s and the Yehuda Gefen Estate’s costs, while there is some merit to Harry’s position that costs should be ordered against Mr. Moldaver personally, I decline to do so. This was, however, a close call as Henia has been found to be incapable, and there is an order in effect that prevents Mr. Moldaver from representing Henia in all matters related to the Estate . [Emphasis added.]

[18] For the reasons already noted, the review motion of George J.A.’s order was dismissed.

[19] As a result, it should have come as no surprise to Mr. Moldaver that he had no authority to bring the review motion on behalf of Henia Gefen. Moreover, he was put on notice by Harry Gefen that costs would be sought against him personally. It is, therefore, appropriate that Mr. Moldaver should bear responsibility for the costs of the review motion that he purportedly brought on behalf of Henia Gefen and that he should not be permitted to recover them from her because he has caused costs to be incurred without reasonable cause by bringing the unsuccessful review motion without the requisite authorization of a competent client and in breach of a court order: Salisbury v. Sun Life Assurance Company of Canada, 2013 ONCA 182, at para. 3.

[20] In the circumstances of this case, Henia Gefen should be completely immunized from the costs of the review motion brought by Mr. Moldaver. Given the agreement of the parties, it is agreed that Henia Gefen should not be responsible for Harry Gefen’s costs of the review motion. We also make an order, under r. 57.07(1)(a) and (b), disallowing costs in relation to the review motion brought by Mr. Moldaver between Mr. Moldaver and Henia Gefen and, in the event that those costs have already been paid, directing that Mr. Moldaver reimburse Henia Gefen any money paid on account of those costs.

Appeal

[21] Harry Gefen asked the panel to make an order confirming the motion judge’s order that Mr. Moldaver is precluded from acting for Henia Gefen on the appeal.

[22] While the motion judge’s order is clear, this issue is a matter more properly raised before the panel hearing the appeal from her order. The parties are therefore directed to communicate with the civil appeals co-ordinator for the purpose of seeking directions from the president of the appeal panel no later than three weeks before the appeal scheduled for hearing on June 1, 2023.

Disposition

[23] Order to go accordingly.

“L.B. Roberts J.A.”

“L. Favreau J.A.”

“J. Copeland J.A.”