CITATION: Viele v. Linton, 2026 ONSC 4175
NEWMARKET COURT FILE NO.: CV-22-00003904-0000
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FRANCES VIELE Plaintiff/Responding Party
– and –
MARY LINTON also known as MARIA LINTON, JOSEPH VIELE also known as GIUSEPPE VIELE also known as JOE VIELE, JAMES DAVID LINTON, BRANDON JOSEPH CARTER and DUNCAN LINTON LLP Defendants/Moving Parties
Robert Lepore, for the Plaintiff
Karen Bernofsky, for the Defendants James David Linton, Brandon Joseph Carter, and Duncan Linton LLP, for the
HEARD: July 16, 2026
REASONS ON COSTS
J.R. McCARTHY J.
Introduction
1The parties appear before me on the issue of costs of the motion in which the entirety of the claim against the Defendants James David Linton, Brandon Carter and Duncan Linton LLP (“the Defendants”) was struck without leave to amend under rule 21.01(3)(d) [“the decision” dated May 26, 2026].
2There is no dispute that the Defendants were successful on the motion and that they are entitled to costs of both the motion and the underlying action.
3The parties disagree on both the scale and the quantum of costs.
The Defendants’ Position
4The Defendants seek costs on a substantial indemnity scale in the amount of $121,591.68 based upon four considerations: i) their unaccepted offer to settle for a dismissal of the action without costs; ii) the court’s finding that the Plaintiff had engaged in “mischief” in naming them as Defendants; iii) unfounded allegations of fraud; iv) the particular factors set out in subrules 57.01(e), (f) and (g). In the alternative, they seek costs on a partial indemnity scale in the amount of $81,625.84.
The Plaintiff’s Position
5The Plaintiff asserts that costs on a substantial indemnity basis are uncalled for and should instead be awarded at the modest and reasonable sum of $16,000 for the motion and action combined. The Plaintiff relies on the reasonable expectation of the parties, her own bill of costs for the motion and the fact that the motion was not brought promptly as required under rule 21.02. The Plaintiff contends that the costs claimed are not reasonable and suggests that 487 hours devoted to the matter by the Defendants’ lawyers is nothing short of absurd.
Analysis
6Certainly, the court found that the Plaintiff’s claim against the Defendant amounted to an abuse of process. As well, the court found the Plaintiff guilty of mischief in naming opposing counsel as Defendants. Moreover, the court refused to grant leave to amend the impugned claim, stating that it was radically defective. Finally, the court found that the Plaintiff had no standing to purport to act on behalf of the estate.
7I find it difficult to believe that the Plaintiff, a lawyer of some experience, would not have understood that she faced exposure to significant costs by embarking on a course of action which amounted to an abuse of process. She also must have understood that bringing a claim against opposing solicitors for negligence and breach of fiduciary duty would involve LawPro and with it, a high level of expertise in specialized litigation counsel. In opposing the motion to strike, she invited a form of discovery through cross-examination on affidavits. Moreover, she unduly complicated the motion by filing supplementary materials and a cross-motion.
8For the Defendants, the motion was important, the issues sufficiently complex and the success total. I do not find the time spent on the file to be absurd. There were hundreds of pages of motion materials. Cross-examinations required careful preparation. The case law pertaining to rule 21 motions is dense and daunting. The principle of indemnity weighs in favour of compensating the Defendants for their costs reasonably incurred. They were required by a timetable to file a defence to a claim served in late 2024. They brought their motion prior to any discoveries. As lead civil judge in this region, I recognize how difficult it can be to obtain a long motions date before a judge. I find that they moved promptly to do so within the general spirit of rule 21.02. Because the matter began as an application, several court appearances were necessary to put the matter on the proper path (as an action) and get it moving forward. I was not made aware of any previous costs decisions made at the various events.
9All that said, this is not a case for substantial indemnity costs. This was a rule 21 pleadings motion. The mischief involved was tactical and perhaps ill-advised, but it did not rise to the level of scandalous, egregious or outrageous. I am unable to find clear allegations of fraud levelled against the Defendants. The Plaintiff issued a pleading which could not survive the application of well-established legal principles and the scrutiny of the court. She took that chance and lost; still, a stinging costs sanction is not warranted or appropriate.
10Costs are in the discretion of the court hearing the matter.
11A rule 49.10 costs award is not mandatory and in the present circumstances, not warranted since the “offer” was really nothing more than an invitation to accept the Defendants’ argument.
12I am not persuaded that substantial indemnity costs would be proportional to the importance of the issues or the complexity of the motion. In my view, partial indemnity costs are adequate, appropriate and proportional.
13I would not, however, deny the quantum sought by the Defendants on the lower scale. There is no basis upon which to question the rates charged by Defendants’ counsel. Counsel had a mountain of documents to sift through. They were faced with sizeable responding and supplementary materials as well as a cross-motion for leave to amend the impugned claim. There were two responding, heavily foot-noted factums. The responding party listed close to fifty authorities in support of its position. I am not persuaded that there was much, if any, duplication of effort. The litigation may not have advanced far beyond the pleadings stage; nonetheless, it merited the vigilance, attention and diligence it received from the outset. The Defendants’ motion materials and their counsel’s advocacy were both exemplary.
14Having carefully considered this matter, I am prepared to award costs on a partial indemnity scale to the Defendants for both the motion and the underlying action in the quantum claimed.
15The Plaintiff shall pay to the Defendants costs fixed and payable forthwith in the combined sum of $81,625.84 inclusive.
16The parties may now furnish the court with the proposed order stemming from the decision which shall incorporate the amount awarded for costs.
J.R. McCARTHY J.
Released: July 17, 2026