Boucher v. Public Accountants, (2004) 188 O.A.C. 201 (CA)

• Judge: Abella, Cronk and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 22, 2004
• Jurisdiction: Ontario
• Citations: (2004), 188 O.A.C. 201 (CA);2004 CanLII 14579 (NS CA);2004 CanLII 14579 (ON CA);71 OR (3d) 291;[2004] CarswellOnt 2521;[2004] OJ No 2634 (QL);132 ACWS (3d) 15;188 OAC 201;48 CPC (5th) 56

Boucher v. Public Accountants (2004), 188 O.A.C. 201 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. JN.092

Sally Anne Boucher, Randolph Brown, Paul Turner, David Venn (applicants/appellants) v. Public Accountants Council For The Province of Ontario, Douglas J. Whyte, Alastair Skinner, Gilbert H. Riou, Ralph T. Neville, Ronald W. Mikula, Barry G. Blay, David H. Atkins, Jennifer L. Fisher, Jerald D. Whelan, Priscilla M. Randolph, Bryan D. Meyer, Thomas A. Hards and The Institute of Chartered Accountants of Ontario (respondents/respondents in appeal)

(C40044)

Indexed As: Boucher et al. v. Public Accountants Council (Ont.) et al.

Ontario Court of Appeal

Abella, Cronk and Armstrong, JJ.A.

June 22, 2004.

Summary:

Some Certified General Accountants (the applicants) complained in two separate judicial disputes about the alleged control of the Public Accountants Council of Ontario (the respondents) by Chartered Accountants. The first judicial dispute was stayed. See [2000] O.T.C. 694. The applicants abandoned the second dispute, a judicial review application. They did not challenge the respondents' entitlement to costs with respect to the second dispute.

The Ontario Divisional Court, per Epstein, J., in a decision reported 166 O.A.C. 281, fixed the costs respecting the second dispute and held that the respondents were entitled to costs on a partial indemnity basis. The applicants appealed, arguing that Epstein, J., should have referred the costs matter to an assessment and that the award was excessive.

The Ontario Court of Appeal allowed the appeal because the costs award was excessive. The court did not interfere with Epstein, J.'s, discretion not to refer the costs for assessment.

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - The Ontario Court of Appeal affirmed that there was now a presumption that costs on an abandoned motion were to be fixed by the court unless the court was satisfied that it had before it an exceptional case - The court also agreed that if a judge was able to effect procedural and substantive justice in fixing costs, she ought to do so - See paragraphs 14 to 18.

Practice - Topic 8301

Costs - Appeals - Appeals from order for costs - Variation of order of trial court - Some Certified General Accountants (the applicants) complained in two separate judicial disputes about the alleged control of the Public Accountants Council of Ontario (the respondents) by Chartered Accountants - The first judicial dispute was stayed - The applicants abandoned the second dispute - A motions judge fixed the respondents' costs in the second dispute, saying that the costs were awarded on a partial indemnity basis - The applicants appealed, complaining that the costs awarded were excessive, in that they were approximately 178% of the costs awarded in the first judicial dispute that involved substantially the same parties and issues without any deduction for any amount claimed - The Ontario Court of Appeal agreed with the applicants and allowed the appeal - The court added that the granting of an award of costs said to be on a partial indemnity basis that was virtually the same as an award on a substantial indemnity basis constituted an error in principle in the exercise of the motions judge's discretion, particularly when the judge rejected a claim for a substantial indemnity award - See paragraphs 19 to 44.

Cases Noticed:

Murano et al. v. Bank of Montreal et al. (1998), 111 O.A.C. 242; 41 O.R.(3d) 222 (C.A.), refd to. [para. 16].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, consd. [para. 19].

Hamilton v. Open Window Bakery Ltd. et al. (2003), 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, consd. [para. 20].

Zesta Engineering Ltd. v. Cloutier et al. [2002] O.A.C. Uned. 288; 21 C.C.E.L.(3d) 161 (C.A.), consd. [para. 24].

Stellarbridge Management Inc. v. Magna International (Canada) Inc. et al. (2004), 187 O.A.C. 78 (C.A.), refd to. [para. 24].

Wasserman, Arsenault Ltd. et al. v. Sone et al. (2002), 164 O.A.C. 195 (C.A.), refd to. [para. 35].

Lawyers' Professional Indemnity Co. et al. v. Geto Investments Ltd. et al., [2002] O.T.C. 78; 17 C.P.C.(5th) 334 (Sup. Ct.), consd. [para. 35].

Toronto (City) v. First Ontario Realty Corp. (2002), 59 O.R.(3d) 568 (Sup. Ct.), refd to. [para. 38].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 37.09(3), rule 57.01(3.1) [para. 14].

Counsel:

David E. Wires, for the appellants;

Michael D. Lipton, Q.C., for the Public Accountants Council for the Province of Ontario;

Cynthia Amsterdam, for Douglas J. Whyte, Alastair Skinner, Gilbert H. Riou, Ralph T. Neville, Ronald W. Mikula, Barry G. Blay, David H. Atkins, Jennifer L. Fisher, Jerald D. Whelan, Priscilla M. Randolph, Bryan D. Meyer and Thomas A. Hards;

Robert D. Peck, for the Institute of Chartered Accountants of Ontario.

This appeal was heard on December 15, 2003, by Abella, Cronk and Armstrong, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was delivered by Armstrong, J.A., and released on June 22, 2004.