CITATION: Shibish v. Scher et al., 2015 ONSC 1844
COURT FILE NO.: CV-11-442196
DATE: 20150414
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LORI-ANN SHIBISH
Plaintiff/Appellant
– and –
HUGH SCHER AND SCHER LAW PROFESSIONAL CORPORATION
Defendants/Respondents
James Norton, for the Plaintiff
John Cannings and May El-Abdallah, for the Defendants
HEARD: November 25, 2014; January 12, and March 13, 2015
CAROLE J. BROWN, J.
REASONS FOR DECISION
[1] The plaintiff/appellant brings this appeal from the decision of Master Brott dated June 26, 2013, ordering the appellant, Lori-Ann Shibish, to post security for costs pursuant to Rule 56.01 of the Rules of Civil Procedure in the amount of $40,000. It is the position of the appellant that the Master erred in requiring her to post security for costs.
The Motion to Strike
[2] At the outset of the appeal, the respondents brought a motion to strike paragraph 3(d) of the appellant's Notice of Appeal dated July 8, 2013 without leave to amend. Initially, the motion to strike included a request to strike portions of paragraph 3(b) as well, which read as follows:
The Master made serious errors of law, by:
(b) improperly basing her decision on the underlying premise that it would be unfair to allow the defendants to defend both this proceeding and a counterclaim in a related action without some form of security being ordered, when no such evidence was before the court, the issue had not been raised on the motion and where the Master lacked jurisdiction to make such a finding.
[3] The appellant, prior to the hearing of this motion, consented to striking the words in italics above, "the issue had not been raised on the motion".
[4] The remaining paragraph sought to be struck in this motion reads as follows:
- The Master made serious errors of law, by:
(d) holding that the plaintiff had not provided "ample evidence" of her chances of success on the merits, when she [Master Brott] had previously refused a motion to permit the plaintiff to collect such evidence from the defendant.
[5] The moving parties/respondents submit that any arguments made by the appellant as regards the previous motion to compel answers to questions refused at the examination for discovery of Scher are not relevant to this appeal, constitute a collateral attack on the endorsement of Master Brott dated February 25, 2013 in the motion to compel undertakings and are contrary to Rule 25.11 of the Rules of Civil Procedure. I note that the Master's decision in the motion to compel undertakings was never appealed, and is not appealed before this Court.
[6] The moving parties submit that pursuant to this ground of appeal, the appellant is taking issue with the decision of Master Brott dated February 25, 2013. However, the proper route of attack would have been an appeal from that decision. Instead, the plaintiff/appellant chose not to appeal the order and thereafter chose to abandon the remainder of her motion to compel answers to undertakings. The moving parties argue that, therefore, the appellant is now bound by the Order dated February 25, 2013. The moving parties argue that this ground of appeal constitutes a collateral attack on the decision of Master Brott, which cannot be permitted. They rely on Garland v Consumers' Gas Co., 2004 SCC 25, 2004 S.C.C. 25 as regards collateral attack.
[7] I am in agreement with the submissions of the moving parties. I am of the view that this ground of appeal constitutes a collateral attack on the decision of Master Brott, which was not appealed, and order that paragraph 3(d) of the Notice of Appeal be struck without leave to amend.
The Appeal
[8] The appellant enumerates as issues before this appellate court the following:
- Whether the Master made palpable and overriding errors by:
(a) misapplying Rule 56.01(1) in considering the appellant's ordinary place of residence, impecuniosity and the underlying merits of the claim;
(b) relying on obiter comments by Roberts J. in her reasons dismissing the Honda action for delay;
(c) failing to realize that Scher was in a conflict of interest by arguing the delay motion;
(d) giving improper weight to the defendant's evidence and making findings of fact not reasonably supported by such evidence, particularly in circumstances where such evidence was unsubstantiated and where the Master had dismissed the refusals motion, thereby not requiring the defendants to substantiate the evidence.
Whether the Master exercised her discretion upon incorrect legal principles.
Whether the Master erred in law by:
(a) misconstruing and misapplying the legal tests used by courts when determining whether to order security for costs;
(b) basing her decision on the underlying premise that it would be unfair to allow the defendants to defend both this proceeding and a counterclaim in a related action without some form of security for costs being ordered when no such evidence was before the court and where the Master lacked jurisdiction to make such a finding;
(c) considering irrelevant and privileged communications between Shibish and her former lawyer, and other unsupported allegations; and
(d) holding that the plaintiff had not provided "ample evidence" of her chances of success on the merits.
[9] As regards the first ground of appeal, above as related to ordinary place of residence, while the appellant maintained on the motion before the Master that she was ordinarily resident in Ontario, the Master found that her ordinary place of residence was Australia, based on all of the evidence. The appellant has now, subsequent to delivery of the Notice of Appeal, withdrawn the issue of her residence and accepted the Master's finding in this regard.
[10] On the appeal, the parties placed before this Court the entire record which was before the Master on the motion for security for costs. That evidentiary record is voluminous.
The Facts
[11] This action arises within the context of an action commenced by the plaintiff, Lori-Ann Shibish, in 1998 against her former employer, Honda Canada Inc. ("Honda") and her former employee group insurance benefits carrier, Prudential Insurance of America ("Prudential"). In that action, the plaintiff alleged that she had been wrongfully dismissed from her employment and that the two defendants, Honda and Prudential had wrongfully denied her short and long-term disability benefits. In the context of that litigation, the plaintiff was represented by counsel. In 2004, she retained new counsel, Hugh Scher ("Scher") to represent her. On March 18, 2011, the action was dismissed for delay by Roberts J. It is of note that the appeal from the decision of Roberts J. was abandoned, such that the decision stands.
[12] This action, framed in solicitor's negligence against Scher and his law firm, was commenced in 2011. It alleges that the delay and subsequent dismissal of the action was occasioned by his actions or omissions.
[13] On March 30, 2012, following commencement of the solicitor's negligence claim, Scher and his law firm commenced a fraudulent conveyance action alleging that the plaintiff fraudulently conveyed her interest in a farmhouse in Bradford, Ontario, to the co-defendant in that action, Ronald Elmer Conrad, in order to defeat the plaintiff's creditors, including Scher and his law firm.
The Issues
[14] The issues for determination by this Court sitting on appeal from the Order of the Master dated June 26, 2013 are as follows:
Whether the Master exercised her discretion on the wrong principles or misapprehended the evidence such that there is a palpable and/or or overriding error; and
Whether the Master made any errors in law as regards her decision.
Standard of Review
[15] Appellate interference will be warranted “only if the Master made an error of law or exercised his or her discretion on the wrong principles or misapprehended the evidence such that there is a palpable and overriding error”: Zeitoun v. Economical Insurance Group (2008), 2008 CanLII 20996 (ON SCDC), 91 O.R. (3d) 131.
[16] The standard of review on a question of law is correctness: Zeitoun v. Economical Insurance Group, supra.
[17] As regards findings of fact, the appellate court will not interfere with a Master' s decision unless there has been a palpable and overriding error. This same standard applies to inferences of fact. Where there is some evidence upon which the Master could have relied to reach a conclusion, the appellate court will not interfere. It is not the role of the reviewing court to verify that inferences of fact can be reasonably supported by the findings of fact of the Master, but rather to determine whether the Master made a palpable and overriding error in coming to a factual conclusion based on accepted facts, which implies a stricter standard. Further, where evidence exists to support an inference, an appellate court will be hard-pressed to find a palpable and overriding error: Housen v Nikolaisen, supra. at paras. 1, 6, 10, 19, and 21-23.
[18] Moreover, an appeal from a Master’s decision is not a re-hearing. On questions of fact and mixed fact and law, deference applies and the role of the reviewing court is limited. The appellate court cannot substitute its interpretation of the facts or re-weigh the evidence simply because it takes a different view of the evidence from that of the Master: Wellwood v Ontario Provincial Police et al, 2010 ONCA 386. Further, an appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts: Housen v Nikolaisen, supra.
[19] Where the Master is exercising case management functions, as Master Brott was doing in this case, increased deference ought to be shown due to the unique role in the litigation process of case management masters: Zeitoun, supra.; Housen v Nikolaisen, 2002 CarswellSask 2078, 2002 SCC 33; Bruno Appliance and Furniture Inc. v Cassels Brock & Blackwell LLP, 2013 CarswellOnt 1630, 2013 ONSC 686.
[20] There is no disagreement among the parties with respect to the standard of review applicable in this case. However, counsel for the appellant submits that, in the circumstances of this case, increased deference ought not to be shown to the Master, as her case management functions had not been ongoing for a long time prior to the motion. I do not have the evidence before me as regards how long she was involved, other than to note that she had heard at least one motion and convened a case conference prior to the motion for security for costs. Despite the appellant's submission, I am satisfied that the Master, as case management master, had exercised case management functions previously in this action and is owed increased deference.
Security for Costs: Rule 56.01
[21] Rule 56.01 provides that the court may make such order for security for costs as is just where it appears, inter alia, that (a) the plaintiff or applicant is ordinarily resident outside Ontario; (b) the plaintiff or applicant has another proceeding for the same relief pending in Ontario or elsewhere;… (e) there is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent.
[22] The application of Rule 56.01 involves some procedural complexity as there is a shifting onus between the two parties and the standard of proof also changes as the onus shifts. As observed by Doherty J. (as he then was) in Hallum v Canadian Memorial Chiropractic College (1989), 1989 CanLII 4354 (ON SC), 70 O.R. (2d) 119:
Rule 56.01 which empowers the court to order security for costs establishes a two-step inquiry. First, the defendant must show that it "appears" that one of the six factors set out in cls. (a) through (f) of rule 56.01 exist. Secondly, if the defendant can clear the first hurdle, the court must make any order as to security for costs "as is just". I take this second stage to require an inquiry into all facts which may assist in determining the justice of the case.
… A litigant who falls within one of the categories created by rule 56.01(a) to (f), and who relies on his impecuniosity to avoid an order requiring that he post security, must do more than adduce some evidence of impecuniosity. The onus rests on him to satisfy the court that he is impecunious: City Paving Co. Ltd. v Corporation of Port Colburn (City) (1985), 3 C.P.C. (2d) 316. The onus rests on the party relying on impecuniosity, not by virtue of the language of rule 56.01, but because his financial capabilities are within his knowledge and not known to his opponent; and because he asserts his impecuniosity as a shield against an order as to security for costs: Sopinka and Lederman, The Law of Evidence in Civil Cases (1974), at p.395.
[23] I note that the term "impecuniosity" does not appear in Rule 56, but is a judicial gloss on the rule in response to the words "as is just". When the plaintiff seeks to rely on impecuniosity, the onus falls on him or her to demonstrate that impecuniosity exists on a balance of probabilities. The evidentiary threshold for impecuniosity is high, and "bald statements unsupported by detail" are not sufficient. The threshold can only be reached by "tendering complete and accurate disclosure of the plaintiff's income, assets, expenses, liabilities and borrowing ability, with full supporting documentation for each category where available or an explanation where not available": Coastline Corp. v Canaccord Capital Corp., 2009 CarswellOnt 2312; Uribe v Sanchez, [2006] O.J. No. 2370; Shuter v Toronto Dominion Bank, 2007 CanLII 37475 (ON SC), [2007] O.J. No. 3435; Hamayoon et al. v Bordbar et al., 2010 ONSC 1968; O’Neil v Le Roux, 2011 CarswellOnt 5623.
[24] Where impecuniosity is shown, the plaintiff need only demonstrate that the claim is not plainly devoid of merit. Where impecuniosity is not shown, whether the claim has a good chance of success is a legitimate factor in deciding whether or not it would be just to require security for costs. The onus remains on the plaintiff to adduce sufficient evidence of impecuniosity through supporting financial documents or details. The plaintiff's case is not assisted by the failure of the defendant to cross-examine him or her: Talarico-Robertson v Communiqué Group Inc., [2004] O.J. No. 1648.
[25] The plaintiff's financial evidence must be set out with robust particularity and without unanswered material questions. Where the plaintiff demonstrates impecuniosity, he or she need only demonstrate that the claim is not devoid of merit. Where impecuniosity is not shown, the standard regarding merits is a "good chance of success": Zeitoun, supra.
[26] The exercise of discretion to make such an order "as is just" involves balancing the interests of the parties, which necessitates a review of the financial circumstances of the plaintiff and the possible effect of an order for security for costs in preventing a bona fide claim from proceeding. There is no rigid requirement that impecunious plaintiffs must establish a probability of success. Such a requirement would take away from the flexibility needed under the subject rule. A real possibility of success may be enough in some circumstances.
Findings of the Master
[27] Despite the submissions of the plaintiff at the motion, the Master found, on a balance of probabilities, that the plaintiff is ordinarily resident outside Ontario.
[28] In this regard, the Master found as follows:
[8] Shibish currently resides in Perth, Australia. The affidavit evidence upon which she was never cross-examined, states inter alia that she considers herself to be ordinarily resident in Ontario. She was born and raised in Ontario and some family members still live in Ontario. She states that her permanent residence is the farmhouse in Bradford, which is the subject matter of the Fraudulent Conveyances action. She pays no rent to stay there when she is in Ontario. She is currently covered by OHIP and has seen Ontario doctors over the last few years. She intends to return to Ontario upon completion of her studies in Australia in December 2013. The plaintiff holds a class 155 Visa which, according to the Australian government, "is a permanent visa for current or former Australian permanent residents and former Australian citizens. This visa permits one to maintain or regain one's status as an Australian permanent resident."
[9] Ms. Shibish resided in Australia from January 2003 to September 2006 while the Honda action was on-going. There is a plethora of evidence outlining the plaintiff's directions to Mr. Scher and his predecessor on the file, Mr. Wright, that they were not to disclose the fact that she did not reside in Ontario to defence counsel in the Honda action as she wanted to "avoid liability for the payment of security for costs." She was in Ontario for a period of time in 2006 and 2007 but again the evidence is that she intended to "go home to Australia". In September 2007 the plaintiff enrolled in Vancouver Island University in Nanaimo, British Columbia where she remained until June 2011. During the summer of 2011 Ms. Shibish stayed at the farm house now owned by Conrad. She paid no rent. In December 2011 she returned to Australia to study.
[11] I am satisfied that the defendant has satisfied his onus to demonstrate on a balance of probabilities that Ms. Shibish is ordinarily resident outside of Ontario. In the past twelve years Ms. Shibish has been absent from Ontario for more than ten of them. As Master MacLeod stated in Torstar, supra, "In a case where the evidence is ambiguous, for the purpose of this rule, one of the critical factors may well be whether or not the plaintiff retains assets in the jurisdiction which would be exigible to satisfy a judgment for costs. Here, although the plaintiff maintains she is ordinarily resident Ontario, there is certainly suspicion that the plaintiff disposed of her interest in the farm to avoid having to satisfy potential costs against her. Further the evidence of her intended return to Ontario is vague. There is no compelling evidence to suggest where she will reside or whether she intends to work or study upon her return to Ontario.
[29] While the Master's finding of residence outside Ontario had originally been appealed, the issue has now been withdrawn and the appellant accepts the findings of the Master in this regard. I have included the above paragraphs from the Master's decision as they review a significant portion of the evidence that was reviewed before me on the appeal contained in the voluminous documentation.
[30] As regards impecuniosity, the Master found as follows:
[13] The plaintiff has the onus to substantiate her allegation of impecuniosity which caselaw states is more than mere financial hardship. The defendants, relying on Morten v Canada (Attorney General) 2005 CarswellOnt 939 submit that on a motion for security for costs, the plaintiff's financial evidence must be set out with “ robust particularity" – leaving "no unanswered material questions". The defendants assert therefore that financial disclosure should include:
The amount and source of all income;
A description of all assets, including values;
A list of all liabilities and significant expenses;
An indication of the plaintiff's ability to borrow funds;
Details of any assets disposed of or encumbered since the cause of action arose.
[14] Ms. Shibish has failed to produce a statement of net worth. She has conflicting evidence with respect to her rent in that she claims a monthly expense of $1100 (AUD) for rent yet her unsworn Supplementary Affidavit states that she paid no rent between December 2011 and August 2012. She fails to provide any evidence of her ability to borrow. She has applied for and holds a number of credit cards but has disclosed none of those applications. She is the recipient of a scholarship with a monthly income of $2083 and she works part time in a winery in Australia. There is also the issue of the ownership of the farm which the plaintiff denies but the defendant asserts is a continuing interest.
[15] The plaintiff has not made ample disclosure and accordingly has failed to establish impecuniosity. This is so whether I adopt the plaintiff’s reliance on Zeitoun wherein the plaintiff alleges that she need only demonstrate impecuniosity on a balance of probabilities.
[31] As regards the foregoing and the finding of impecuniosity, the appellant alleges that the Master has erred in law and has made palpable and overriding errors as regards the findings of fact, based on the record before her. The appellant reviewed with this Court at great length the voluminous materials as regards evidence of impecuniosity. He submitted that there is no requirement for the specific documentation enumerated above at paragraph 30, as regards financial disclosure, nor is there a requirement for a statement of net worth.
[32] I am not of the view that the Master, in her decision, held that the specific enumerated documentation was required to be disclosed, but rather, as she stated at paragraph 13 of her decision, what was required was financial evidence setting out with "robust particularity" the plaintiff's/appellant's impecuniosity and "leaving no unanswered material questions". The jurisprudence is consistent in setting forth the evidence to be adduced in this regard: see Zeitoun, supra., as well as the cases referenced at paragraph 23, supra. While the documentation specified by the Master would assist in satisfying that requirement and providing "robust particularity" of financial circumstances, I am not of the view that her finding as regards impecuniosity was based on the failure to provide specifically that documentation, but rather to provide sufficient evidence of impecuniosity to satisfy the court. Based on the evidence that was before the Master, which was also before this Court, I do not find that there was evidence set out with "robust particularity" of the plaintiff's financial status. The evidence as regards assets and liabilities was lacking, based on the record before me.
[33] The issue of the transfer of the house which she had owned jointly into the name of Conrad alone is not fully explained. This Court was also taken to references regarding her credit cards, including a credit card in her name at Radish Enterprises, a business with which she was apparently affiliated, although there was, in the evidence, no detailed information provided as regards that credit card, the business listed in conjunction with the credit card, any specifics about her relationship to the business which permitted her to take out the card, nor any information which may have been provided to the bank in that regard. As regards this latter information, while it may be that her financial status as at 2013 was not the same as when the application to the bank was made, no evidence was provided in this regard at all. The evidence as regards her financial status, assets and liabilities left much to question.
[34] While the respondent chose not to cross-examine the plaintiff, this does not assist the plaintiff nor constitute an acceptance of her evidence: Shuter v TD Bank, 2007 CanLII 37475 (ON SC), 2007 CarswellOnt 5732.
[35] Based on all of the evidence reviewed on appeal, which was also before the Master, I do not find that the Master erred in fact or in law in finding that the plaintiff's impecuniosity was not adequately established.
[36] After finding the plaintiff not to be ordinarily resident in Ontario, and that there was not sufficient evidence to establish impecuniosity, the Master went on to consider the merits of the case. Based on the Rule and the caselaw, the Master did not err in her consideration of the merits of the case. Merits have a role in any application under Rule 56.01(1), albeit on a continuum. Merits are a relevant factor at the second stage of the Rule 56.01 analysis. It is an error of law to fail to consider the merits of the plaintiff's claim in an application for security for costs brought by the defendant, whether or not the plaintiff raises impecuniosity in defence to the motion: Padnos v Luminart Inc., 1996 CanLII 11781 (ON SC), [1996] O.J. No. 4549. The issue is not whether the merits are considered but to what extent they are considered. The appropriateness of any investigation into the merits depends on the nature of the action; the complexity of the pleadings; and whether the defendant can satisfy one of the subrules (a) to (f). ": Horvat v Feldman [1986] O.J. No. 2560.
[37] “Meritorious" means something more than "clearly not devoid of merit. Where the plaintiff does not demonstrate impecuniosity, as here, but asserts that an order for security for costs would have the effect of depriving the plaintiff of his or her bona fide cause of action, the court may consider the merits and exercise its discretion to permit a meritorious claim to proceed. The exercise of discretion to make such an order "as is just" involves balancing the interests of the parties, which necessitates a review of the financial circumstances of the plaintiff and the possible effect of an order for security costs in preventing a bona fide claim from proceeding: Chachula v Baillie 2004 CanLII 27934 (ON SC), [2004] O.J. No. 1.
[38] As was stated by Low J. In giving the judgment of the Divisional Court in Zeitoun, supra,
[48] The motions judge held that the Master had erred in imposing too high an onus on the plaintiff in relation to the merits of the action. I am, with respect, unable to concur. There is a difference in the quality of the evidence required depending on whether or not the plaintiff is able to show impecuniosity.
[49] Where impecuniosity is shown, the plaintiff needs only to demonstrate that the claim is not plainly devoid of merit.… That is a very low evidentiary threshold.
[50] Where impecuniosity has not been shown however, a closer scrutiny of the merits of the case is warranted; in those cases there is no compelling argument that there is a danger that poverty of the plaintiff will cause an injustice by impending pursuit of the claim that otherwise would have been permitted to be tried. Where impecuniosity has not been shown, a legitimate factor in deciding whether or not it would be just to require security for costs is whether the claim has a good chance of success.
[39] The appellant submits that the Master erred in relying on obiter comments made by Roberts J. in dismissing the Honda action for delay and in her assessment of the merits of this action in finding that she was not satisfied that the plaintiff had provided ample evidence of a good chance of success and that it would be unfair to allow the plaintiff to compel the defendants to defend both the within action and the counterclaim in the fraudulent conveyance action without requiring the plaintiff to post security for costs.
[40] Firstly, I am satisfied that the Master did not rely wholly on the reasons of Roberts J. Indeed, she stated that she had "heeded" the reasons of Roberts J, but had also "reviewed the plaintiff's evidence on this motion". Further, she recognized at paragraph 16 that in order to make the determination as regards merits, "the court must review the pleadings, evidence, transcripts and other relevant facts before it". Given her findings as regards the plaintiff's failure to establish impecuniosity, she applied the higher standard in considering the merits of the action. Further, based on the record, there was no determinative evidence that an order for security for costs would preclude the plaintiff from proceeding with her action.
[41] As regards the appellant's arguments concerning reliance on Roberts J's decision concerning the dismissal for delay, and the Master's findings as regards the merits of the action, the Master had before her evidence of significant delay in the action prior to the defendant's assuming carriage in 2004, the plaintiff's knowledge throughout that time and, from 2004, of the delays and their adverse effects on the proceedings, and her participation therein including, inter alia, her continued absence from Ontario, failure to return for examinations for discovery and failure to provide the relevant documentation. Evidence of the foregoing was in the record before the Master.
[42] While the appellant submits that the Master considered inadmissible evidence, which was subject to solicitor-client privilege, any such privilege was waived by virtue of the lawsuit framed in solicitor negligence brought by the plaintiff against her former lawyer: Gowling v Meredith, 2011 ONSC 2686.
[43] I am further satisfied that, in ordering security for costs, she balanced the interests of both parties in exercising her discretion and ordering costs "as is just". While the defendants had initially sought security for costs in the amount of $404,430, the Master exercised her discretion in ordering costs on an incremental basis in the much smaller amount of $40,000.
[44] Based on my review of the evidence before this Court and the review and submissions of counsel for the parties regarding the evidentiary record, I am satisfied that the Master fully considered the record before her in her carefully analyzed decision. There was sufficient evidence contained in the affidavits, the exhibits attached thereto and the record as a whole, to support her decision.
[45] She made no palpable or overriding error of fact. As regards the law, the Master correctly applied the relevant law to the facts as found based on the evidence before her.
[46] I do not find any error which would permit this appellate court to interfere with the decision of the Master as regards security for costs. The Master did not make any palpable or overriding errors of fact nor errors of law which would permit this Court to interfere with her decision. I am satisfied, based on the extensive review of the voluminous evidence, and the submissions of counsel which occurred over the two days that this appeal was argued, that the evidence supports the decision of the Master in its entirety.
[47] Accordingly, I uphold the decision of the Master and dismiss this appeal.
Costs
[48] The parties each provided their bills of cost on this appeal. The defendants have been wholly successful in responding to the appeal and are entitled to their costs. The defendants seek their total costs on a partial indemnity basis in the amount of $24,843.90 and on the motion to strike in the amount of $5,101. In considering the reasonableness of the amounts sought, I have also taken into consideration the amounts sought by the appellant had she been successful. The appellant, on a partial indemnity basis, sought costs on the appeal in the amount of $46,356.42 all-inclusive and on the motion to strike, costs in the amount of $2,557.52.
[49] I am satisfied taking into account the costs sought by both parties, that the defendants' costs on the appeal in the amount of $24,843.90 is reasonable. This amount is approximately 1/2 of that sought by the appellant. As regards the motion to strike, the defendant was also successful and is entitled to costs for that motion. I order costs as regards the motion to strike in the amount of $2,500.
Carole J. Brown J.
Released: April 14, 2015
CITATION: Shibish v. Scher et al., 2015 ONSC 1844
COURT FILE NO.: CV-11-442196
DATE: 20150414
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LORI-ANN SHIBISH
Plaintiff/Appellant
– and –
HUGH SCHER AND SCHER LAW PROFESSIONAL CORPORATION
Defendants/Respondents
REASONS FOR DECISION
Carole J. Brown, J.
Released: April 14, 2015