Court File and Parties

Court File No.: CV-16-563526 Date: 20190523 Superior Court of Justice - Ontario

Re: Yue Gu, Applicant/Moving Party And: Gaertner Baron LLP, Respondents/Responding Party

Before: Darla A. Wilson J.

Counsel: Michael Simaan, for the Applicant/Moving Party Arie Gaertner, for the Respondent/Responding Party

Heard: May 17, 2019

Endorsement

[1] This matter came before me as an “add on” to the Civil Practice Court list over which I presided on May 17, 2019. The Applicant attended himself and requested an adjournment, which I declined to grant, for reasons which I will explain. The issue for my determination is the entitlement of the Defendant to costs for the abandoned motion and if so, the quantum.

[2] The Respondent law firm (“GB”) was counsel for the Applicant (“Gu”), his wife and a company owned by the Applicant’s wife in relation to an alleged fraud in China.

[3] The Respondent GB ceased acting for Gu in December of 2016 and secured an order removing itself from the record. Gu then assessed the account rendered by GB; Gu had counsel for the assessment.

[4] The Assessment Officer rendered his decision on April 25, 2018 and provided written reasons. On May 25, 2018, the Assessment Officer fixed costs of the assessment payable by Gu to GB.

[5] The Applicant retained counsel who served a notice of motion to oppose the confirmation of the Assessment Officer’s Certificate of Assessment. That motion was served in June of 2018 and initially returnable January 11, 2019. Justice Glustein ordered a timetable for the delivery of materials by November 23, 2018. The materials were not filed because Gu terminated the services of his lawyer.

[6] On January 11, 2019, the return date of his motion, Gu attended before Justice Favreau and requested an adjournment on the basis that he was seeking new counsel. Justice Favreau granted the Applicant’s request and ordered that the Applicant retain counsel with dispatch and attend CPC February 4, 2019 to fix a new return date for the motion, which date would be peremptory on the Applicant. Justice Favreau noted that “this is not a complex matter and…there is no basis for an excessive delay.”

[7] The Applicant did not comply with the Order of Favreau J. and he failed to serve materials. Furthermore, he did not attend in CPC February 4, 2019.

[8] On March 22, 2019, the law firm Kramer Simaan Dhillon LLP served a notice that they were on the record for the Applicant. Counsel attended in CPC on April 15, 2019 and a new return date for the motion was fixed for May 17, 2019. This date was peremptory on Gu. Justice Archibald also ordered the Applicant was to serve his factum by May 8, 2019.

[9] The Applicant failed to serve any further materials in compliance with the Order of Archibald J. While the law firm has failed to remove itself from the record, I am advised that correspondence from the Respondent received no response. The Applicant did not file the confirmation for the motion so the Respondent confirmed it so that the matter would be on a motions list. Unfortunately, that did not occur and hence the attendance before me in CPC. In the circumstances, I agreed to hear this matter.

[10] This motion has been outstanding for almost a year. It was adjourned at the request of the Applicant in February as he advised the Court he was in the process of retaining counsel. Eventually, a new date was fixed for May 17, 2019, peremptory on the Applicant. While he did retain counsel, it appears that Kramer Simaan Dhillon LLP firm is no longer acting on his behalf.

[11] The Applicant has failed to comply with the orders of Justice Glustein, Favreau, and Archibald in that he has failed to file his factum, despite the fact that the motion was served almost a year ago. He attended May 17 and requested a further adjournment, which I declined to grant. This matter concerns the fees of the Resp law firm which the Applicant has not paid. He pursued an assessment of the account of GB, as was his right. That has taken place with the benefit of counsel, and he is unhappy with the result. This is his motion to oppose the confirmation of the Assessment Officer’s certificate. It has been adjourned at the Applicant’s request and it was marked peremptory on the Applicant. Today, he makes the same submissions that he did before Justice Favreau in February, when he was granted an indulgence by the court. It is unfair to the Respondent to delay this matter any further.

[12] The Applicant has essentially abandoned the motion he served in June 2018. Rule 37.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that if a party fails to file a confirmation form in accordance with the rules, the motion is deemed to be abandoned and the responding party can make submissions on the issue of costs. In my view, given the manner in which this motion has proceeded, GB is entitled to costs of the abandoned motion.

[13] Counsel requests costs on a substantial indemnity basis in the sum of $12,877.97 which amount is inclusive of the disbursements of $880.48. Alternatively, costs on a partial indemnity scale in the amount of $9,554.36 are sought.

[14] This is his motion and he has failed to comply with various court orders and seemingly terminates the services of his lawyers on a regular basis.

[15] The Respondent filed a responding and cross motion record for the motion returnable January 11, 2109. The materials he handed to me on May 17 dealt with costs and the history of the motion. I acknowledge that counsel attended before Justice Glustein initially in CPC, then before Justice Favreau and most recently Justice Archibald. These were attendances to schedule the motion. The Respondent is entitled to costs of the abandoned motion, which I fix in the sum of $10,000 plus disbursements of $880.48 to be paid forthwith by the Applicant to the Respondent. In my view, taking into account the facts of this case, and the factors enumerated in Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I am of the view this is a fair and reasonable amount.

[16] Finally, I note that the firm of Kramer Simaan Dhillon LLP remains counsel of record. In my view, it was inappropriate for them to ignore correspondence from counsel concerning the return date of this motion. Until counsel is removed from the record, they have an obligation to continue to act and that includes responding to inquiries from opposing counsel. A copy of this endorsement is to be served on the Kramer Simaan Dhillon LLP firm.

D.A. Wilson J. Date: May 23, 2019