Court File and Parties

COURT FILE NO.: CV-15-4447-0000 ES DATE: 2020-06-30 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

CONCETTA BACA, GINA DE VINCENTIS and LUCIANO GUALTIERO RICCI Plaintiffs

- and -

AUGUSTA TIBERI, BRUNO TIBERI and IDA CAPORALE Defendants

Counsel: Jon David Giacomelli and Manjit Singh, for the Plaintiffs Harvey S. Dorsey, for the Defendants

HEARD: April 12, July 17, August 14, October 12 and 13, and December 14, 2017, at Brampton, Ontario

Before: Price J.

Supplementary Costs Endorsement

[1] The defendants have requested clarification of my Costs Order dated December 5, 2018.

[2] The plaintiff submits that I am functus officio and have no jurisdiction to amend my Order, which was signed by the Registrar and affirmed on appeal. I disagree.

[3] Harvison Young J. correctly set out the doctrine of functus officio in his decision in Beard Winter LLP v Shekhdar, 2015 ONSC 4517. He stated:

[29] The essential elements of the doctrine of functus officio as well as its exceptions were set out by Sopinka J. in the Supreme Court of Canada’s decision in the case of Chandler v Alberta Association of Architects, [1989] 2 S.C.R. 848 at page 860 as follows:

The general rule that a final decision of a court cannot be reopened drives from the decision of the English Court of Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:

1. Where there had been a slip in drawing it up, and
2. Where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. v. J.O. Ross Engineering Corp., [1934] S.C.R. 186.

[30] The fundamental policy rationale behind the functus officio doctrine is that for the due and proper administration of justice, there must be finality to a proceeding to ensure procedural fairness and the integrity of the judicial system. As was noted by the Supreme Court of Canada in the case of Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3:

It is clear that the principle of functus officio exists to allow finality of judgments from courts which are subject to appeal. This makes sense: if the court could continually hear applications to vary its decisions, it would assume the function of an appellate court and deny litigants a stable base from which to launch an appeal (para 79).

[31] If a court is permitted to continually revisit or reconsider final orders simply because it has changed its mind or wishes to continue exercising jurisdiction over a matter, there would never be finality to a proceeding.

[4] Justice Harvison-Young noted that the same principle applied regardless of whether a formal order was ever taken out. He stated:

[36] The same conclusion was reached by the Divisional Court in the Brown case, [Brown v The Municipal Property Assessment Corp., 2014 ONSC 7137], supra, at paras. 20-22, wherein on that issue, the Divisonal Court held the following:

I acknowledge that there is a fairly broad power, in a judge, to change an order after it has been announced but before it has been signed and entered. Any such change should only be made, however, if it either technical (e.g. to correct an arithmetic error) or it is necessary to avoid a miscarriage of justice; Clayton v. British American Securities Ltd., [1935] 1 D.L.R. 432 (B.C.C.A.) at pp. 440-441. Even then, if a change is to be made, it must be fully explained to ensure that the authority is not abused….

The onus on a judge to clearly explain the basis for a change to an order already given was repeated in 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, [2014] O.J. No. 697 (C.A.) where Gillese J.A. said, at para. 73:

A clear explanation for the change to the order was required so that the parties, and this court on review, could know the reason for the change. It was an error to fail to give that explanation.

In addition to these principles, it is also clear that the discretion to re-open a matter is one that should be resorted to “sparingly and with the greatest care”: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983 at para. 61; Clayton v British American Securities Ltd. at p. 440.

[5] In the present case, I am exercising my jurisdiction to amend my Order in order to correct an omission in expressing the manifest intention of the court. The Court’s intention was set out in pages 51 to 53 of my Reasons. Those reasons stated:

[158] Nearly all of the legal costs in this litigation could have been avoided if Ms. Hagel had simply advised her clients to make the estate whole and distribute the assets of the estate pursuant to the uncontested will.

[159] The court is mindful of Ms. Ida Caporale’s limited role in this matter. While Ms. Caporale is not completely blameless, I do not find that it would be reasonable for her to be responsible for costs on the same basis as Ms. and Mr. Tiberi.

[160] For the foregoing reasons, it is ordered that:

1. The defendents and their legal counsel, Ms. Hagel, shall be jointly and severally liable to the plaintiffs for their legal costs incurred on a full recovery basis, subject to a reduction of $50,000.
2. Accordingly, the defendants and Ms. Hagel shall jointly and severally pay the plaintiffs their costs on a full recovery basis, fixed in the amount of $365,519.70, inclusive of fees, HST and disbursemetns, calculated as follows:….

[161] Costs shall be apportioned as follows:

1. Ms. Hagel shall personally pay 25% of the plaintiffs’ costs.
2. The balance of the plaintiffs’ costs shall be apportioned as follows: (a) 75% shall be paid by Ms. and Mr. Tiberi; and (b) 25% shall be paid by Ms. Caporale.

[6] I would have thought that this expressed the intention of the Court clearly enough. However, it appears that a dispute has arisen over whether the 25% to be paid by Ms. Caporale meant 25% of the entire unpaid costs of the plaintiffs or 25% of the 75% of the said costs not ordered to be paid by Ms. Hagel. The Court’s intention was that Ms. Caporale was to pay 25% of the 75% of the plaintiff’s costs not ordered to be paid by Ms. Hagel. This was intended to be conveyed by the Court’s use of the words, “The balance of the plaintiffs’ costs” immediately following the reference to the 25% of the plaintiffs’ costs to be paid by Ms. Hagel.

[7] In order to clarify the Order, and avoid further unnecessary litigation over the interpretation of my words, I am amending the Order by adding the words, “being 75% of the total of the said costs” to follow the words, “The balance of the Plaintiffs’ costs”, so that it is clear that the 25% to be paid by the Defendant Ida Caporale is 25% of the 75% not ordered to be paid by Ms. Hagel.

Price J. Dated: June 30, 2020