Court File and Parties

COURT FILE NO.: 11-53210 DATE: 2016/09/13 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Helena Guergis, Plaintiffs AND Arthur Hamilton, Cassels Brock & Blackwell LLP, The Honourable Shelly Glover and Derrick Snowdy, Defendants

BEFORE: Justice Charles T. Hackland

COUNSEL: David Sheriff-Scott and Stephen Victor Q.C., the Applicant (moving party) Paul D’Angelo, the Respondent, Conservative Party of Canada

HEARD: In writing

Costs Endorsement

C.T. Hackland J.

[1] In my decision dated July 7, 2016 and reported at 2016 ONSC 4428, I accepted the argument of the plaintiff’s solicitors (the “solicitors”), Victor Ages Vallance LLP (“VAV”), that they were entitled to assert a solicitor’s lien and obtain a charging order over a costs award of approximately $48,000 owing to the plaintiff, Ms. Guergis, by two of the defendants in this proceeding. The Conservative Party of Canada (“CPC”), a judgment creditor of the plaintiff, opposed this relief and sought to garnish the funds to pay down a costs award which CPC obtained earlier in the action, against the plaintiff.

[2] In the circumstances, as the successful party on the motion, the plaintiff’s solicitors are entitled to their reasonable partial indemnity costs. I do not accept the solicitors’ argument that upon reviewing the circumstances surrounding the garnishee issued by CPC and the surrounding settlement discussions and proposals, that either party should be sanctioned with substantial indemnity costs.

[3] The plaintiff’s solicitors have calculated their partial indemnity costs in the sum of $25,357.20 plus disbursements of $1,045.83, inclusive of HST. On my view of the Bill of Costs, I think there is some level of over-lawyering or duplication on this relatively uncomplicated motion. I would allow the partial indemnity costs to the applicant fixed in the sum of $18,500 fees and $1,045.83 for disbursements, inclusive of HST and interest.

[4] CPC argues that I should exercise my discretion under Rule 58.05 of the Rules of Civil Procedure to allow them (the CPC) to set off the costs awarded herein in favour of the plaintiff, against costs owed by the plaintiff to CPC from an earlier motion in this same proceeding. I accept that in the normal course costs awards for and against the same parties in a proceeding, should be permitted to be set off. However, the plaintiff’s solicitors argued persuasively that the relief sought on the motion (the solicitor’s lien and charging order) was for the benefit of the solicitors and only technically accrued to the plaintiff’s benefit, so that the requisites for a set off are arguably not present.

[5] In my view, to deprive the solicitors of the costs of their successful motion for a solicitor’s lien and charging order would substantially reduce their net recovery from a motion on which they were successful and would penalize them, more than their client, for asserting a right to which I found they were entitled.

[6] Accordingly, I would not permit CPC to set off this costs award. I would direct CPC to pay the costs referenced in paragraph 3 above to be paid to the solicitors within 30 days of the release of this endorsement.

Justice Charles T. Hackland Date: September 13, 2016