Fong v. Chan, (1999) 128 O.A.C. 2 (CA)

• Judge: Carthy, Feldman and Sharpe, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 05, 1999
• Jurisdiction: Ontario
• Citations: (1999), 128 O.A.C. 2 (CA);1999 CanLII 2052 (ON CA);1999 CanLII 2052 (NS CA);46 OR (3d) 330;181 DLR (4th) 614;[1999] CarswellOnt 3955;[1999] OJ No 4600 (QL);128 OAC 2;93 ACWS (3d) 222

Fong v. Chan (1999), 128 O.A.C. 2 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. DE.018

Man Cheng Fong, Fat Leon Kuan, Kun Chok Chiang, Wun Man Vong, Moon Lam Mak, and Ronald Fook Yui Fung (plaintiffs/respondents in appeal) v. Kam Cheung Chan, also known as Kam Chan, Diane Chan, Thorold Inn Ltd., 937555 Ontario Inc., 937556 Ontario Inc., Murck Holdings Ltd., 937559 Ontario Inc., Lighting Unlimited Corporation Limited and L.U. Fixtures Inc., carrying on business as Lighting Unlimited, 881062 Ontario Limited, L.U. Realty Inc., Heart Lake Lighting Corporation, 932379 Ontario Limited, Solid Platinum Investments Limited, Ken Li, 896236 Ontario Limited and Steven Mucha and Chanward Investments Limited, Yu Fashions Limited, 881092 Ontario Inc., 903826 Ontario Inc. and 903845 Ontario Inc. (defendants/appellants)

(C31594)

Indexed As: Fong et al. v. Chan et al.

Ontario Court of Appeal

Carthy, Feldman and Sharpe, JJ.A.

December 8, 1999.

Summary:

Defendants' counsel brought a motion to, inter alia, have the plaintiffs' law firm re­moved because of an alleged conflict of interest. The plaintiffs' law firm was repre­sented by separate counsel. The entire mo­tion was dismissed and solicitor and client scale costs were awarded against the defen­dants' law firm personally. Separate costs were awarded against the defendants. The defendants' law firm appealed the order made against it personally.

The Ontario Court of Appeal, in a decision reported at 97 O.A.C. 317, allowed the appeal. The motions judge did not give the defendants' law firm a reasonable oppor­tunity to be heard as required by rule 57.07. Further, the facts did not support the making of such an order.

The Ontario Court of Appeal, in a decision reported at 102 O.A.C. 161, awarded the defendants' law firm its costs of the appeal, assessed on a party and party basis, to be paid 50% by the plaintiffs and 50% by the plaintiffs' law firm, where the plaintiffs' law firm was a party both on the motion and on the appeal. The defendants' law firm was represented by Murray, who was not a mem­ber of the firm.

Costs were assessed. The assessment of­ficer awarded the defendants' law firm an allowance for Murray's counsel fee, but held that the firm was not entitled to an al­lowance for the work of certain salaried associates, a partner, and an articling student, all of whom assisted Murray in preparing the appeal. The defendants' law firm appealed the order.

The Ontario Court of Appeal allowed the appeal and remitted the matter to the as­sessment officer to determine whether the amounts claimed for the salaried associates, partners and articling student were reason­able.

Practice - Topic 7049

Costs - Party and party costs - Entitlement to party and party costs - Self-represented lawyer - A law firm was represented by Murray, who was not a member of the firm - Costs were assessed - The as­sessment officer awarded the firm an al­lowance for Murray's counsel fee, but held that the firm was not entitled to an al­lowance for the work of certain salaried associates, a partner, and an articling stu­dent, all of whom assisted Murray in pre­paring the appeal - The firm appealed - The Ontario Court of Appeal discussed the extent to which self-represented lawyers were entitled to recover costs in litigation to which they were parties - The court held that the firm's claim to an allowance for the salaried employees was justified by s. 36 of the Solicitor's Act (Ont.) and the claim for the partner's work was allowable at common law.

Practice - Topic 7049

Costs - Party and party costs - Entitlement to party and party costs - Self-represented lawyer - [See second Practice - Topic 7050 ].

Practice - Topic 7050

Costs - Party and party costs - Entitlement to party and party costs - Successful party not represented by counsel - The Ontario Court of Appeal stated that "[a] rule pre­cluding recovery of costs, in whole or in part, by self-represented litigants would deprive the court of a potentially useful tool to encourage settlements and to dis­courage or sanction inappropriate be­haviour. ... I would add that nothing in these reasons is meant to suggest that a self-represented litigant has an automatic right to recover costs. The matter remains fully within the discretion of the trial judge, and ... there are undoubtedly cases where it is inappropriate for a lawyer to appear in person, and there will be cases where the self-represented litigant's con­duct of the proceedings is inappropriate." -See paragraphs 24 to 25.

Practice - Topic 7050

Costs - Party and party costs - Entitlement to party and party costs - Successful party not represented by counsel - The Ontario Court of Appeal stated that "... self-repre­sented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. ... all litigants suffer a loss of time through their involvement in the legal process. The self-represented litigant should not recover costs for the time and effort that any litigant would have to de­vote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, they incurred an op­portunity cost by foregoing remunerative activity." - See paragraph 26.

Cases Noticed:

London Scottish Benefits Society v. Chor­ley (1884), 13 Q.B.D. 872 (C.A.), refd to. [para. 7].

Lalancette v. Walford, [1927] 4 D.L.R. 642 (Ont. S.C.), refd to. [para. 7].

Johnston v. Ryckman (1903), 7 O.L.R. 511 (Div. Ct.), not folld. [para. 8].

Fanaken v. Bell, Temple (1985), 49 C.P.C. 212 (Ont. Assessment Officer), refd to. [para. 11].

Tory, Tory Deslauriers and Binnington v. Concert Productions International Inc. (1986), 14 C.P.C.(2d) 103 (Ont. As­sessment Officer), refd to. [para. 11].

Argiris v. Canadiana Realty Ltd., [1998] O.J. No. 2146, refd to. [para. 11].

Watson v. Holyoake (1986), 15 C.P.C.(2d) 262 (Ont. H.C.), refd to. [para. 11].

Jaffe v. Dearing (1992), 7 C.P.C.(3d) 225 (Ont. Gen. Div.), refd to. [para. 12].

Endicott v. Halliday (1982), 28 C.P.C. 114 (Assessment Officer), refd to. [para. 13].

Wright and McTaggart v. Soapac In­dustries Ltd. (1990), 75 O.R.(2d) 394 (Assessment Officer), refd to. [para. 13].

Gunning Estate v. Abrams, [1997] O.J. No. 4364 (Ont. Gen. Div.), refd to. [para. 14].

Jouppi v. Guy (1997), 33 O.T.C. 107 (Gen. Div.), refd to. [para. 14].

Fellowes, McNeil v. Kansa General In­surance Co. et al. (1997), 49 O.T.C. 339; 37 O.R.(3d) 464 (Gen. Div.), refd to. [para. 14].

Buckland v. Watts, [1970] 1 Q.B. 27 (C.A.), refd to. [para. 17].

Millar v. Macdonald (1892), 14 P.R. 449 (Div. Ct.), refd to. [para. 18].

McBeth v. Dalhousie University (1986), 72 N.S.R.(2d) 224; 173 A.P.R. 224; 10 C.P.C.(2d) 69 (C.A.), refd to. [para. 19].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83; 33 D.L.R.(4th) 174; 38 C.C.L.T. 184; 25 C.R.R. 321; [1987] 1 W.W.R. 577; 87 C.L.L.C. 14,002, refd to. [para. 19].

Andrews v. Law Society of British Colum­bia, [1989] 1 S.C.R. 143; 91 N.R. 255; [1989] 2 W.W.R. 289; 56 D.L.R.(4th) 1; 34 B.C.L.R.(2d) 273; 36 C.R.R. 193; 25 C.C.E.L. 255, refd to. [para. 19].

Johnston v. Law Society of Prince Edward Island (1988), 73 Nfld. & P.E.I.R. 239; 229 A.P.R. 239; 54 D.L.R.(4th) 18 (P.E.I.C.A.), refd to. [para. 19].

Skidmore et al. v. Blackmore (1995), 55 B.C.A.C. 191; 90 W.A.C. 191; 122 D.L.R.(4th) 330 (C.A.), refd to. [para. 20].

Kendall v. Hunt (No. 2) (1979), 106 D.L.R.(3d) 277 (B.C.C.A.), refd to. [para. 20].

Statutes Noticed:

Solicitor's Act, R.S.O. 1990, c. S-15, sect. 36 [para. 5].

Authors and Works Noticed:

Lush, Practice (3rd Ed.), p. 896 [para. 16].

Counsel:

Eric R. Murray, Q.C., for the appellants;

R. Douglas Elliot and Won J. Kim, for the respondents.

This appeal was heard on November 5, 1999, by Carthy, Feldman and Sharpe, JJ.A., of the Ontario Court of Appeal. Sharpe, J.A., delivered the following decision for the Court of Appeal on December 8, 1999.