Court File and Parties
Court File No.: CV-18-0061-00 Date: 2019-07-16
Superior Court of Justice - Ontario
Re: KAREN RINGIUS, in her capacity as Estate Trustee, IN THE ESTATE OF BRIAN DAVID RINGIUS v. CAPITAL INSURANCE AGENCIES LTD., KELLI GOTHARD McKINNON, and KELLI GOTHARD McKINNON, in her capacity as Estate Trustee, IN THE ESTATE OF JERRY N. GOTHARD and IN THE ESTATE OF BEVERLY GOTHARD
Heard: Via Written Submissions
Before: B. Warkentin R.S.J.
Counsel: T. Rhaintre, for the Plaintiff J. Illingworth and K. Hagman, for the Defendants
Endorsement
[1] In their submissions on costs after success on a summary judgment motion, counsel for the defendants seek costs to be awarded personally against the lawyer for the plaintiff, Mr. Brian MacIvor. Mr. MacIvor was not the counsel who argued the summary judgment motion, however, he was counsel for the plaintiff in various communications with defence counsel leading up to the summary judgment motion.
[2] Under Rule 57.07(2) of the Rules of Civil Procedure, a motion for costs against a lawyer personally may be brought either by the court or by a party. Counsel for the defendant correctly identified the two-part test when seeking costs as against a solicitor personally under Rule 57.07, and its interpretation: Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (1998), 16 C.P.C. (4th) 201 (Ont. S.C.); Carleton v. Beaverton Hotel (2009), 96 O.R. (3d) 391 (Div. Ct.).
[3] The two-part test first requires that the costs must have been incurred unnecessarily. Second, the court should consider, as a matter of its discretion, whether imposing costs against the lawyer personally are warranted in the circumstances of the particular case.
[4] In order to embark on the two-part test, counsel for the defendants must bring a motion before me that provides, in affidavit form, the evidence supporting the allegation that costs should be awarded against the solicitor personally. The solicitor against whom costs are being sought is entitled to appear before the court to respond to the motion before a costs award is made.
[5] The two-part test cannot be satisfied by the usual costs submissions. This is particularly true when the allegations against the solicitor relate to alleged conduct that occurred prior to the summary judgment motion. The costs submissions are not evidence that is acceptable to the court when serious allegations of this nature are made.
[6] If counsel for the defendants desires to continue to pursue costs against the solicitor for the plaintiff personally, he shall bring a motion before me in the proper form. I estimate that a half day will be required and the parties shall prepare facta with respect to the awarding of costs personally against a solicitor.