Court File and Parties

Court File No.: 09-4363-SR
Date: 2012-02-23
Superior Court of Justice – Ontario

Re: Areia Concrete Inc., Plaintiff

and

961175 Ontario Ltd., Robert Bonadeo, Robert Gillies,
Carlos Lourenco, Luigino Rocca and Lou Rocca, Defendants

Before: The Honourable Mr. Justice D.J. Gordon

Counsel:
M. A. Cohen, for the Moving Party/Defendant
J. K. Postnikoff, for the Responding Party/Plaintiff

Heard: January 5, 2012

Supplementary Endorsement re: Costs

[1] In my endorsement, released January 17, 2012, I granted the defendants’ motion, removing the plaintiff’s lawyers of record. In result, the defendant seeks a cost award.

[2] The primary focus of the motion involved the ability of a solicitor to continue when a former client became a potential witness for the other side. My ruling addressed the particular circumstances.

[3] Certain matters addressed in my ruling are relevant on the issue of costs. At para. 23, I indicated “it cannot be said with absolute certainty that either Mr. Azevedo or Mr. Gadbois will be a witness at trial”. Hence, I considered whether the motion ought be left to the trial judge but, at para. 24, decided the parties needed an answer before the commencement of trial. Lastly, at para. 27, I made reference to my ruling being “... based on the likelihood of Mr. Azevedo being called as a witness ...”.

[4] These are unique factors on both the substantive issue and on costs. In this regard, to award costs in the usual manner and then discover, for example, that Mr. Azevedo was not called as a witness at trial would render my ruling unnecessary, and more.

[5] Rule 57.03, Rules of Civil Procedure , requires me to fix the costs unless a different order would be more just.

[6] This is one of those rare cases where it would not be appropriate to either fix the costs or direct by whom costs ought be paid. Accordingly, costs are reserved to the trial judge.

D.J. Gordon J.

Released: February 23, 2012