COURT FILE AND PARTIES

COURT FILE NO.: CV-09-00385708-0000

DATE: 20140422

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Deacon, Spears, Fedson & Montizambert, Solicitors

AND:

Dawn Wannenburg and Sophie Jaremko, Clients

BEFORE: Mr Justice Graeme Mew

COUNSEL:
Michael J. Campbell, for the Solicitors

Dawn Wannenburg and Sophie Jaremko appearing in person

HEARD: 2 April 2014

COSTS AWARD

[1] Sophie Jaremko unsuccessfully moved to set aside a notice of garnishment served by the creditor solicitors on Crawford Castings Co. Limited.

[2] The total judgment debt, including accrued interest and costs, stood at $7,731.29.

[3] I was informed that the garnishee has to date paid certain amounts that would have been paid to the creditor solicitors into their own lawyers’ trust account pending the outcome of the motion. As a result of my decision I ordered that those funds should be released to the creditor solicitors.

[4] I awarded costs of the motion fixed at $1,000 and payable by Ms. Jaremko to the solicitors forthwith, but with the caveat that if there were factors, such as a settlement offer, which the solicitors wished to bring to my attention for the purposes of me considering an enhanced award of costs, I would receive further written submissions from the parties.

[5] The solicitors have advised that on 26 March 2014 the solicitors offered to resolve the motion without costs, and on terms that would have required the garnished funds to be released to the Sheriff. Ms. Jaremko not having acceded to that offer, the solicitors now seek a further $672.22 (Ms. Jaremko having paid the partial indemnity costs of $1,000 already).

[6] Having regard to the factors set out in Rule 57.01(1) – and in particular the amount of the judgment debt – as well as the Court of Appeal’s admonition in Boucher v. Public Accountants Council of Ontario, (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291 at para. 26, that amount of costs should be fair and reasonable to the unsuccessful party in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant, I find it fair and reasonable to make no enhanced award of costs on this occasion.

[7] In so ordering, I would repeat that the clients have to accept some responsibility for the costs incurred by the solicitors as a result of the clients’ unsuccessful attempts to challenge the solicitors’ efforts to assess and recover their fees.

[8] On the other hand the amount of costs awarded should be proportionate to the amount of the judgment debt and should also take into account the challenges that face self-represented litigants in general and these clients in particular as they navigate their way through the often labyrinthine procedures relating to the assessment of fees under the Solicitors Act and the mechanism for enforcing an assessment officer’s decision.

Mew J.

Date: 22 April 2014