Court File and Parties
Court File No.: 18-781255 Date: 2019/03/22 Superior Court of Justice – Ontario
In the matter of the Solicitors Act, R.S.O. 1990, c. S.15 And in the matter of Conway Baxter Wilson LLP.
Between: Conway, Baxter, Wilson LLP, Applicant And: 1179 Hunt Club Road, Respondent
Before: Justice R. Laliberte
Counsel: Thomas G. Conway and Kevin Caron, Counsel for the Applicant Elliot Birnboim, Counsel for the Respondent
Heard: In writing
Costs Endorsement
[1] The parties have been unable to resolve the question of costs for the motion and cross-motion heard on January 31, 2019.
[2] The Court released its ruling on February 14, 2019 and ordered that the Ottawa and Toronto Orders for assessment be stayed pending the completion of action number CV-18-00611005, which is a negligence action by the Respondent against the Applicant.
[3] The Applicant maintains and underlines that neither party had sought the relief granted by the Court. The Court notes, has it did in hearing these motions and ruling on same, that the Respondent’s Notice of Cross-motion dated December 3rd, 2018, identifies the following relief:
- An order dismissing or staying this proceeding
[4] It is also obvious from the correspondence provided in these written submissions that a stay of proceedings was sought by the Respondent.
[5] The Court therefore rejects the Applicant’s suggestion that it granted a relief not sought by the parties. In any event, sec. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) provides as follows:
Sec. 106 A Court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the Court on such terms as are considered just.
[6] The Court’s view on the issue of costs for the motion and cross-motion heard on January 31, 2019 is that costs should be in the cause and recovered by the successful party. This finding is based on the following considerations:
the Court did not rule on the question of whether sec. 3 of the Solicitors’ Act assessment should proceed in Ottawa or Toronto, as it felt that the issue of the four outstanding accounts totaling $90,401.84 is intertwined with the action framed in negligence;
the Court made it clear in its ruling that it was not expressing any opinion as to the merit of the Respondent’s claim against the Applicant;
the Court agrees with the Applicant’s submission that this litigation is ongoing and that there are many possible outcomes and that ultimately, the results will speak to the appropriateness of a costs award for this motion and cross-motion; it is noted that Justice Bell’s decision is under appeal;
the Respondent’s claim is for full indemnity costs in the amount of $41,045.00 plus disbursements; in the context of a number of possible outcomes in this litigation, the Court is concerned with the impact on the Applicant; the Court echoes the words of Justice Perell found in Pionisio v. EI Popular:
“6. Costs in the cause is an appropriate order where success on the motion or interlocutory step is divided or where the Court concludes that an unsuccessful party should not be penalized in costs if he or she ultimately succeeds in the proceeding….
- It seems to me that in all the circumstances, the fairest award is that the successful party after the trial should recover the costs of these motions; hence costs should be in the cause”.
[7] In the end, the Court is of the view that while it is a salutary practice to decide the question of costs on interlocutory matters, the circumstances are such that a trial judge will be in a better position to determine the costs for these motions. The Court accordingly exercises its discretion under sec. 131 of the CJA and orders that the costs for this motion and cross-motion be reserved for the trial judge.