COURT FILE NO.: 10-49290

DATE: 13/11/2015

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RAYMOND V. HESSION and HNA MANAGEMENT SERVICES INC., Plaintiffs

AND:

BLACK CONSTRUCTION SERVICES INC. and BRUCE BLACK, Defendants

BEFORE: MASTER MACLEOD

COUNSEL: Martin Z. Black, for the defendants, moving parties

R. Aaron Rubinoff, for the plaintiffs, responding parties

HEARD: September 10th, 2015

ENDORSEMENT

[1] This is a motion pursuant to Rule 23.05 requesting an order for costs of a discontinued court proceeding. There were three components to the proceeding: a main action, a counterclaim and a third party action. Each of those engages a slightly different analysis.

[2] This matter is complicated because the three parts of the action were discontinued at different times. Though there were consents, the parties now disagree about the content of their agreement and whether or not the third party is precluded from seeking costs.

[3] I reserved to write reasons because it was necessary to review the procedural history and the evidence. It also seemed important to clarify the procedures involved in motions under Rule 23.05 and the distinction between making an order respecting costs, fixing costs and assessing costs.

[4] To make sense of this, it is necessary to outline the facts, the nature of the litigation and the procedural history.

Background

[5] This court proceeding is a tragic example of a case that should have been resolved or brought to conclusion at a very early date. Over the past five years the parties have collectively spent more in legal fees than the amounts in dispute and ultimately they abandoned the case without either a settlement or a determination on the merits. It now has a continuing half-life because of the dispute over costs.

[6] By way of background, the defendant, Bruce Black was married to Adele Hession, the daughter of the plaintiff, Raymond Hession. Originally a home renovator, Bruce had become a new home builder with the support and encouragement of Raymond and Adele.[^1] His construction company was the corporate defendant, Black Construction Services Inc. Raymond and Adele both played a role in the business and were officers and directors. Raymond had also provided financial support which included guaranteeing the debts of the corporation to Tarion Warranty Corporation.

[7] In approximately 2006 Black Construction ran into financial difficulty. This was primarily the result of a dispute which arose in connection with a custom home the corporation was building on Rideau Road. That project ended in litigation and in the corporation ceasing to carry on business. Bankruptcy was considered but not pursued. Raymond and Adele both resigned as officers and directors and Raymond withdrew his financial support. According to the defendants, Raymond signed a release of any claims against the corporation at the time of his resignation.

[8] In 2009 the corporation was sued by Tarion Warranty Corporation though Bruce denies that he was aware of the litigation. The statement of claim was served at Raymond’s home or former home which was the registered address of the corporation. In any event, the corporation did not defend the Tarion action. Raymond and HNA defended because they were also named as defendants by Tarion.

[9] The reason the plaintiffs were defendants in the Tarion litigation was because Raymond and his corporation were guarantors of Black Construction’s obligations to Tarion. Ultimately Raymond negotiated a settlement and paid $30,000.00 to the warranty corporation.

[10] The present litigation was launched by Raymond in August of 2010. It was a claim for indemnification in respect of the Tarion litigation. Raymond sought to recover the $30,000.00 paid under the guarantee and $8,244.79 in costs incurred in responding to the claim. The total claim was $38,244.79.

[11] During the same time period, Bruce and Adele had suffered a marriage breakdown. Adele had commenced a divorce proceeding in Quebec in August of 2010, the same month her father commenced this action. Needless to say Bruce did not view this as a coincidence. Throughout the proceeding he regarded it as an improper claim designed simply to put pressure upon him in the divorce proceeding. He believed that Raymond’s release signed in 2006 was a complete defence and in any event he sought to have the action dismissed as an abuse of process.

[12] In October of 2010 the defendants delivered a notice of intent to defend followed by a statement of defence in November. The counterclaim and the third party claim were not launched until 18 months later and were triggered when Raymond amended his claim.

[13] The original action had only named Raymond as a plaintiff. In September of 2011, more than a year after the action was launched, the claim was amended to add HNA Management Services Inc. as a co-plaintiff. Presumably this was because the corporation had advanced the funds to pay Tarion and had therefore suffered the loss.

[14] In April of 2012 the defendants delivered an amended defence and added a counterclaim. They also issued a third party claim against Adele. The counterclaim was for a declaration that Raymond remained liable as a director of the corporation, for unspecified general damages and punitive damages of $100,000.00. The third party claim was for a declaration that Adele remained liable as a director and for punitive damages of $50,000.00. The essential allegation underlying both of these proceedings was that Raymond and Adele had conspired to injure the defendants and they had breached their fiduciary duties as officers and directors when they resigned without notice and when Raymond withdrew his financial support.

[15] In December of 2012 there was a status hearing under the former provisions of Rule 48.14. An order was made that the action be set down for trial by July 1, 2013. This deadline was missed and the action was dismissed for delay by the Registrar. On July 5th, 2013 the plaintiffs obtained a consent order setting aside the dismissal order and they set the action down for trial.

[16] In July of 2013 the Hessions’ previous lawyer sent an offer to settle. In that offer he offered dismissal of all three proceedings on the basis that there would be no costs of the claim or the counterclaim but the defendants were to pay costs to the third party. This offer was not accepted.

[17] At a pre-trial on February 3rd, 2014 the action was ordered to trial on September 8th, 2014 and certain additional productions were ordered.

[18] Both parties were originally represented by other counsel. The plaintiff and third party were represented by one lawyer and the defendants were represented by another. At some point in time, the Hessions changed lawyers. At a different point in time, the defendants’ lawyer apparently abandoned his practice in Ontario and they had to retain new counsel. Other lawyers were involved at various points although they did not go on the record.

[19] According to the affidavit of Keith MacLaren, following the pre-trial in February of 2014 when he was retained, his clients offered to discontinue the action without costs provided the defendants also discontinued the third party proceeding and counterclaim without costs. In other words it is his evidence he offered to have all parties walk away from the proceeding sometime in early 2014. This is disputed by the defendants. I have not been shown any document containing such an offer so I am not able to verify its wording or whether it was received. In any event there was no agreement.

[20] What the documents do show is that the parties were unable to come to terms for dismissal of the action without costs. The plaintiffs then decided to abandon the proceeding unilaterally and they indicated they would discontinue the action. They would of course continue to defend against the counterclaim and seek costs unless it was also abandoned by the defendants. In response the defendants were unequivocal that they proposed to proceed with the counterclaim.

[21] The parties could not reach agreement on the issue of costs and ultimately the plaintiffs advised that they were prepared to pay costs of the main action (but of course would seek costs of the counterclaim if it proceeded). This position was conveyed to previous counsel for the defendants in mid-2014 but there was a slight delay due to the fact that counsel had left his office for a “sabbatical” and turned the file over to someone else. The trial remained scheduled for September 8th, 2014.

[22] On August 28th, 2014 Mr. Black was retained to replace the counsel who was on sabbatical (and had by then apparently abandoned his practice) as well as the counsel who was keeping watch over the file (but not prepared to represent the defendants at trial). Mr. Black requested an adjournment of the trial and confirmation that the plaintiffs were discontinuing the main action. At first the adjournment was refused. Ultimately the plaintiffs agreed and the trial was adjourned to the week of March 20th, 2015.

[23] For various reasons, although it had been agreed that the plaintiff’s action would be discontinued with costs, there was disagreement about the form of the order or the consent. Various drafts were exchanged. Finally on January 27th, 2015 a consent discontinuance was delivered. The discontinuance was “with prejudice” and although the discontinuance does not say so, the parties had agreed that the defendants would be entitled to costs of the action on a partial indemnity scale.

[24] On January 28th, 2015 Mr. McLaren wrote in an e-mail that his clients were prepared to consent to dismissal of the counterclaim and the third party claims “with costs” on a partial indemnity scale. This he said would result in “the parties walking away from the lawsuit without further liability to each other.”

[25] On February 3rd, 2015 Mr. Black responded that his client would agree to dismissal of the third party claim “without costs” but intended to proceed to trial on the counterclaim. He also made demand for payment of the costs of the discontinued action and offered to fix the amount of those costs.

[26] On February 17th, 2015 Mr. Black wrote to Justice Beaudoin seeking a further adjournment of the trial. In that letter he stated that he believed his client should be entitled to the payment of costs of the main action before the trial of the counterclaim commenced and he sought to have an assessment of those costs take place immediately. He indicated that he would also be seeking to bring a motion to proceed with the third party claim.

[27] The very next day, Mr. Black received instructions not to proceed with the counterclaim or the third party claim. He advised Mr. McLaren of this and he did not file the election to proceed with the counterclaim or the notice of motion to proceed with the third party claim.

[28] I pause to note that there are some procedural peculiarities in Rule 23. Firstly, pursuant to Rule 23.01 after the close of pleadings an action may only be discontinued with leave of the court or on consent. The main action had of course been discontinued on consent in January. Under Rule 13.02 when a main action is discontinued, the defendant (plaintiff by counterclaim) may elect to continue the counterclaim by filing Form 23B. If the plaintiff by counterclaim does not file Form 23B then the counterclaim is deemed dismissed without costs. In this case Form 23B was served but not filed.

[29] Matters stand otherwise with a third party action. Under Rule 23.03 a third party action is deemed to be discontinued 30 days after the discontinuance of the main action unless “the court orders otherwise within the 30 day period”. Thus the third party claim was deemed to have been discontinued and it would have required an order to revive it.

[30] All of this created some confusion. From a technical standpoint, the court record would have reflected that the entire action and third party claim had been terminated. The status of the counterclaim which was on the trial list might have been unclear. Ultimately counsel agreed that the only remaining issue was the question of costs.

The agreement and the consent order

[31] On March 13th, 2015 following an exchange of e-mail between counsel, a notice of motion and a consent order was submitted to my office. There is no ambiguity about either the notice of motion, the consent or the draft order.

[32] The notice of motion sought “an order dismissing the counterclaim and the third party claim herein with costs and directing the assessment of costs payable in the main action, now discontinued by the plaintiffs, and in the counterclaim and the third party claim”.

[33] The draft order attached to the consent included a provision that the “counterclaim and the third party claim are dismissed with costs”. The draft order went on to provide that the costs of the defendants to the counterclaim, the costs of the third party and the costs of the defendants payable by the plaintiffs in the main action be “assessed by a Master of this Honourable Court pursuant to Rule 23.05” of the rules.

[34] There is absolutely no doubt at all that the wording of these documents proposed that the costs of each of the three proceedings be awarded to the defendant in each proceeding and that the costs be assessed by the master. There is also no doubt that in each case the discontinuance or dismissal was to be “with prejudice”. That is the parties would be precluded from subsequently litigating the same issues. Indeed, much of the correspondence shows that the need to ensure the litigation ended was of paramount concern. This is because Rule 23.04 (1) states that mere discontinuance is not a bar to a subsequent action unless the order or consent states otherwise.

Disposition of the original motion

[35] I declined to sign the order for technical reasons having to do with my jurisdiction, the proper procedure and the difference between fixing and assessing costs. The only reason for declining to sign the order was because these technical concerns needed to be addressed. It was neither because the agreement between the parties was unclear nor because it was faulty in substance. The only issue requiring attention was the question of whether the costs were to be “assessed” or not and to whom the task would be assigned. This requires a brief explanation since the issue may not be self-evident.

[36] Assessment is a process governed by Rule 58 of the Rules of Civil Procedure.[^2] Assessments are conducted by Assessment Officers appointed under s. 90 of the Courts of Justice Act or by a hearings officer to whom the powers of an Assessment Officer are assigned under s. 73. At one time all masters were also designated as assessment officers (s. 90 (2) of the Act) but all masters appointed in the old Supreme Court of Ontario and continued in office under s. 87 of the Act have now retired and the only masters remaining are case management masters appointed under s. 86.1 of the Act.

[37] Generally we refer to case management masters as masters but under the legislation, “masters” are individuals who were masters of the Supreme Court of Ontario continued in office under s. 87 of the act and all new appointments are “case management masters” appointed under s. 86.1. A “case management master” has all of the jurisdiction of a “master” conferred “under the rules of court” and jurisdiction specifically conferred on a case management master under a statute such as the Construction Lien Act. Case management masters are not constituted as assessment officers under the legislation because s. 90 (2) only refers to masters. This was an intentional policy choice made when the new office was created and is the only case in which the jurisdiction of a case management master is narrower than the jurisdiction of a master. Generally it is the other way around. With this one exception, case management masters have all of the jurisdiction of masters plus the jurisdiction specifically conferred on case management masters.

[38] A case management master has all of the jurisdiction of a judge to hear most motions including motions under Rule 23. A case management master may also be designated as a referee by order of a judge pursuant to Rule 54. Of course a case management master may award and fix costs in the exercise of his or her jurisdiction but a case management master is not an assessment officer under s. 90 or Rule 58. Nor is a judge. Generally speaking judges and masters are to fix costs if that can be done fairly but if a detailed examination of accounts and dockets is necessary, the matter should be assessed by an assessment officer.[^3] It was for this reason I declined to sign the order in the form in which it was submitted.

[39] The distinction between awarding costs, fixing costs and assessing costs is important. Awarding costs means determining who gets costs, on what scale, the timing of the obligation to pay costs and whether or not payment of the costs is contingent on the overall outcome of the litigation. An award of costs is an exercise of the discretion set out in s. 131 of the Courts of Justice Act. As an example, costs of a motion could be awarded to the plaintiff on a partial indemnity scale in the cause or in any event of the cause. That kind of award – which does not quantify the costs award - was common before the significant changes to the costs regime that resulted in the current Rule 57.

[40] Under the current costs regime, the court is now presumptively required to deal with the costs of each step of a proceeding and to award and fix those costs payable immediately. The “pay as you go” scheme is designed to bring the discipline of costs to bear on the parties at each step of the proceeding and the imperative to fix costs is to avoid the need for the delay and expense associated with another procedure to determine the costs. The power to refer quantification of costs to an assessment officer remains in the rules but is to be used only in exceptional cases.

[41] Fixing costs is not the same as assessing them. Fixing costs is supposed to be a more rough and ready approach than assessing them. In fixing costs, the court does not undertake an item by item assessment but rather it seeks to arrive at a global figure fair to all parties.[^4] The major benefit of fixing costs is one of expediency. Providing it can be done fairly, the ends of justice are best served by determining the quantum at the same time that costs are awarded.

[42] Generally costs are fixed by the judicial officer who heard the trial or the motion who can therefore bring to bear their own observations and knowledge of the case in determining what costs are appropriate. When the court awards costs of a proceeding that did not proceed the judge or master does not have that intimate knowledge. In that case it may make more sense to order assessment so that a careful review of the bills of costs and supporting documents may be made. The court has held that if detailed examination of the accounts is required and the judge or master believes that fixing the costs would simply result in an arbitrary award, assessment is appropriate.[^5]

[43] There is nothing in Rule 23.05 (1) which leads automatically to fixing of costs or which rules out assessment. The rule provides that a party may make a motion respecting the costs of an action. Naturally the parties may request in the notice of motion that the costs be assessed or they may request the court to fix the costs or they may request some other disposition. The point is that the rule enables a party to move for costs. The award of costs, if costs are awarded, will be governed by Rule 57.

[44] The parties were quite free to agree that costs should be awarded and should be assessed by the court. They were not however at liberty to confer jurisdiction on the master by agreement or to decide what judicial officer would hear the matter if assessment was ordered.

The current motion

[45] Instead of simply submitting a revised draft order or arranging to appear to speak to the matter, Mr. Black served a notice of return of motion with a supplementary notice of motion. The revised notice of motion asked for the following relief:

“An order that the costs of the defendants in these proceedings shall be fixed or alternatively assessed by an assessment officer, and shall be payable by the plaintiffs forthwith.”

[46] For the reasons I have outlined above, it was completely appropriate to request that the costs either be fixed by the court or referred for assessment by the assessment officer. Since the revised motion was brought using all three titles of proceedings, I would have interpreted “costs of the defendants in these proceedings” as meaning costs to the defendants in the main action, to the defendant by counterclaim in the counterclaim and to the third party in the third party action. This would have been consistent with the consent attached to the original motion and it would still have been open to the defendants in the main action to argue that the net result should be an award of costs to those defendants.

[47] As is clear from the balance of the supplementary notice of motion and from the supporting affidavit, however, that is not what the supplementary motion is seeking. The defendants now seek costs of the main action and deny that the defendants by counterclaim or the third party should be entitled to costs. This caused Mr. McLaren to file a cross motion on behalf of his clients seeking costs of the counterclaim and the third party action. He also filed his own affidavits and consequently he did not argue the motion sending Mr. Rubinoff instead.

[48] In paragraph 9 and 10 of their factum the defendants assert that because they did not file the form continuing the counterclaim, it is deemed discontinued without costs and as the third party did not move for costs within 30 days of the discontinuance she may not now move for costs. They sought to dismiss the cross motion.

[49] I do not accept this position taken by the defendants. Firstly it is open to the court to extend any time under the rules either before or after it has expired in order to do justice between the parties.[^6] Secondly, the consent filed by the parties at the time of the original motion was unequivocal. Each responding party in each of the three component pieces of litigation was to have costs as determined by the court. That agreement is binding but even if it was not and instead there was some misunderstanding it would not be fair to deny the other parties the opportunity to argue for their costs. Thus I would extend the time for bringing the cross motions nunc pro tunc.

[50] Though I consider the agreement to be binding, it is not conclusive concerning who should be entitled to a net costs award. This is because the defendants can argue that there were no costs incurred in defending against the counterclaim that were not already involved in prosecuting the action. They can also argue that there are few if any incremental costs incurred in defending against the third party action because Adele was defended by counsel retained by Raymond and her defence was the same as his defence to the counterclaim. On the other hand the defendants to the counterclaim can argue that the defendants incurred costs to prosecute the counterclaim or the third party claim that would not have been involved in simply defending the main action.

[51] It must be remembered as well that the defendants did not launch a counterclaim or the third party action until the plaintiff amended the claim and added a co-plaintiff. So for 18 months of the action there was neither a counterclaim nor a third party proceeding. Once the new pleadings and new parties were brought into the action, it is not clear that significant steps were taken to move the action forwards for some time. In fact it was dismissed for delay and then revived. There was a flurry of activity following the passing of the record and the pre-trial. There was much activity attempting to negotiate the terms of discontinuance. There is much to sort out before an appropriate costs award can be determined.

[52] The quantification of costs is also complicated by the number of lawyers that were involved and by the fact that for some of the legal fees there is only a skeleton or general account that fails to detail the services rendered. This makes it difficult to evaluate what costs are attributable to what services and to eliminate transition costs incurred when a file is transferred from one lawyer to another.

[53] Though I have decided that the costs should be referred for assessment, it is necessary for me to make certain rulings and give direction.

Merits of the actions

[54] Even if I did not consider the agreement between the parties embodied in their consent to be binding, I would still reach the conclusion that each party should be entitled to recover costs. That is because I do not accept the premise forcefully argued by the defendants that the claim launched by the plaintiffs was devoid of merit and that the counterclaim and third party action should be viewed as a natural consequence of the original action.

[55] I have no doubt the defendant felt he was a victim of conspiracy and that Adele and her father launched simultaneous litigation out of malice. It would certainly be improper to launch a frivolous and vexatious action solely to put pressure on a party to a divorce proceeding but there is no law against parties deciding to enforce their rights against someone because they are angry with him or wish to assist an ally.

[56] Of course I have not delved into the evidence concerning the merits of a matter that did not go to trial. In awarding costs of a matter that was never tried and never argued, it is not appropriate to try to guess who would have won had the merits been argued.[^7] It is not for the court to speculate on ultimate merits of the claim or to weigh the merits of potential defences. The court should simply consider whether or not there was some justification for starting the action.[^8]

[57] I cannot say that this claim is self-evidently devoid of merit. It is entirely possible and even probable that a release signed by Raymond in 2006 was not designed to prevent him from seeking indemnity when he was sued by Tarion under his guarantee in 2009.

[58] Nor is it self-evident that a limitation defence would bar a 2010 action for a claim arising from a payment extracted under that 2009 litigation. For one thing the limitation for claims of contribution and indemnity is governed by s. 18 of the Limitations Act, 2002 which states that the period begins to run when the statement of claim is served. For another, the law in relation to guarantees, indemnities and demands is complex.[^9]

[59] The Tarion action against the plaintiffs was commenced on August 21, 2009. It was settled on January 19th, 2010 when the plaintiffs paid Tarion. This action for indemnity was started on August 31, 2010. It was amended to add the co-plaintiff on September 11th, 2011. There may or may not have been a limitation defence against the corporate co-plaintiff depending on when the Tarion claim was served and whether or not there was a discoverability issue. The question is at least arguable.

[60] I do not have to decide these issues. Suffice to say that the litigation had in my view an air of reality about it. It was not self-evidently frivolous and it was not merely vexatious. Nor in my view did the claim inevitably lead to the counterclaim and the third party claim. Those pleadings were based on conspiracy, abuse of process and breach of fiduciary duty.

Entitlement to costs on discontinuance

[61] The old Rule 23.05 provided that a defendant was automatically entitled to costs if a plaintiff discontinued an action. In fact it also made the plaintiff responsible for costs of a crossclaim or third party claim commenced by the defendant in response to the claim.[^10] In effect that is what Mr. Black is seeking here. The defendants seek to have the costs of the counterclaim and third party claim rolled up with the cost of defending the action and to have the plaintiffs pay significant costs.

[62] Rule 23.05 was amended in 2009 and replaced with the current rule. The intention of the amendment was to remove a powerful disincentive for discontinuing and also to reduce the number of motions seeking relief from the rule. The current rule contains no presumption.

[63] Under the old rule, the plaintiff had to show that the action was bona fide to have any chance of avoiding the cost consequence set out in that rule.[^11] Under the new rule, the apparent bona fides of the action remains a useful place to begin the analysis but that is not a high threshold.[^12] The fact that an action is not frivolous does not relieve a plaintiff from possible costs consequences. It is simply a factor to be considered.[^13]

[64] In this case the plaintiff commenced the action in August of 2010 and it was not until September of 2011 that the claim was amended to add the corporate plaintiff. The third party claim and the counterclaim were only begun in April of 2011. Then, despite the plaintiffs’ decision to abandon the claim in 2014 the defendants made it clear they intended to pursue the counterclaim and perhaps less certainly the third party claim. Ultimately they too were abandoned on the eve of what was supposed to be the trial.

[65] There is good reason to examine the costs of each proceeding separately and to make precisely the order that was contemplated by the consent. I do not consider this to be a case for substantial indemnity costs.

Disposition

[66] I find that the fair and just result is to award each party the costs of defending the proceeding launched against it, him or her on a partial indemnity scale. I am referring the calculation of costs to assessment pursuant to Rule 58 subject to the directions that follow:

a. The defendants shall have costs of defending the action until the date that the counterclaim and third party claims were commenced.

b. Thereafter, until the date when the main action was discontinued, the defendants shall have the costs of defending the main action but to the extent that they can be separately identified, they shall not have costs of pursuing the counterclaim or third party claim

c. From the date the proceedings were commenced until the dates they were abandoned the defendants to counterclaim and the third party shall have costs of defending the counterclaim and third party claim. In reviewing those costs, the third party shall only have costs if costs were incurred in addition to the costs incurred by the defendant to counterclaim. The defendant to counterclaim shall only have costs that were necessitated by defending the counterclaim and would not have been incurred in prosecuting the main action.

d. Costs should not include costs incurred when changing counsel while the new counsel learned about the file.

e. Because the plaintiffs paid all of the costs of the third party, the costs of the third party and the costs of the defendants by counterclaim shall be treated as costs of the defendants by counterclaim.

f. The costs of the defendants to counterclaim (including the costs of the third party) shall be deducted from the costs owed to the defendants by the plaintiffs.

g. The net award of costs in favour of the defendants or in favour of the plaintiffs (as defendants to counterclaim) shall be payable within 30 days of confirmation of the report of the assessment officer.

Costs of the Motion

[67] The parties each seek costs of the motion. Given how the motion was argued, the plaintiff and third party have been successful on the cross motion and the defendants have been unsuccessful in arguing that there should be no costs of the counterclaim or third party action. Moreover I have found that the parties did reach an agreement when the original motion in writing was submitted and I find that the defendants have improperly attempted to resile from that agreement or have attempted to recast the effect of the agreement.

[68] Under the circumstances, the plaintiff and third party shall have costs of the motion. I fix those costs in the amount of $1,500.00 on a partial indemnity scale. This amount will be added to or deducted from the costs as determined by the assessment officer.

November 13th, 2015

___________________________

Master C. MacLeod

[^1]: As both Raymond and Adele share a surname and as Bruce shares a surname with his present counsel (who is apparently no relation) to avoid confusion I have referred to the parties throughout these reasons by their first names. This is not meant as a lack of respect to Mr. Hession, Ms. Hession or Mr. Black. [^2]: Although both are referred to as assessments, it is important not to confuse party and party assessments under the rules with solicitor and client assessments under the Solicitor’s Act. The latter is a statutory process for resolving fee disputes between lawyers and their clients whereas the former is a process for determining the quantum of costs awarded between the parties in a proceeding. The procedure under the Solicitor’s Act remains in full force and effect but assessment of party and party costs is now rare. [^3]: See Murano v. Bank of Montreal (1998) 1998 CanLII 5633 (ON CA), 41 O.R. (3d) 222 (C.A.) which remains good law despite the rule amendments. [^4]: See Dejong (Litigation Guardian of) v. Owen Sound General & Marine Hospital (1996) 1996 CanLII 8246 (ON SC), 31 O.R. (3d) 594 (Gen.Div.) – though Rule 57 does now require the court fixing costs to have regard to the tariffs and Part 1 of Schedule A now simply refers to the criteria in rule 57.01 (1). [^5]: V.B. v. Cairns (2003) C.C.L.T. (3d 95; [2003] O.J. No 5466 (S.C.J.) @ para. 64 [^6]: Rule 3.02 [^7]: See Les Terraces Amélie v. J. Stuart Hall and Associates Ltd. (2009) 91 C.L.R. (3d) 196 (S.C.J.) [^8]: Digiuseppe v. Todd 2012 ONSC 1028 (S.C.J.) [^9]: See for example Canaccord Capital Corp. v. Roscoe 2013 ONCA 378; (2103) 115 O.R. (3d) 641 (C.A.) [^10]: Former Rule 23.05 [^11]: Provincial Crane Inc. v. AMCA International Ltd. (1990) 44 C.P.C. (2d) 46 (H.C.J.) [^12]: Diguiseppe, supra @ 8, at paras. 22 -24 [^13]: Diguiseppe, supra @ para. 28