Galganov v. Russell (Township),

• Jurisdiction: Ontario
• Judge: Weiler, Sharpe and Blair, JJ.A.
• Neutral Citation: 2012 ONCA 410
• Citation: (2012), 294 O.A.C. 13 (CA),2012 ONCA 410,350 DLR (4th) 679,294 OAC 13,294 O.A.C. 13,(2012), 294 OAC 13 (CA),350 D.L.R. (4th) 679
• Date: 03 February 2012
• Court: Court of Appeal (Ontario)

Galganov v. Russell (2012), 294 O.A.C. 13 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JN.037

Howard Galganov (applicant/respondent) v. The Corporation of the Township of Russell (respondent)

Jean-Serge Brisson (applicant/respondent) v. The Corporation of the Township of Russell (respondent)

(C54486; 2012 ONCA 410)

Indexed As: Galganov v. Russell (Township)

Ontario Court of Appeal

Weiler, Sharpe and Blair, JJ.A.

June 15, 2012.

Summary:

The Township of Russell passed a bylaw which required that all new exterior commercial signs be in English and French. Galganov and Brisson each challenged the bylaw. Their applications were ordered to be tried together with evidence from one used in the other.

The Ontario Superior Court, in a decision reported at [2010] O.T.C. Uned. 4566, dismissed the applications. The parties made submissions respecting costs. The Township sought costs against Galganov and Brisson's counsel, Bickley, personally.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 3065, awarded the township costs of $180,000 against Galganov and Brisson ($100,000 against Galganov and $80,000 against Brisson). However, the application judge ordered that 40 per cent of the costs order be payable by Bickley personally ($72,000) pursuant to rule 57.07(1) of the Rules of Civil Procedure. The Township sought costs respecting its motion to have Bickley pay costs personally.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 5609, awarded the Township costs of $10,000 together with $2,300 in disbursements. Bickley obtained leave to appeal the costs order against him personally.

The Ontario Court of Appeal allowed Bickley's appeal and set aside the order of costs against him personally. The court awarded him costs of the motion before the application judge, the motion for leave to appeal and this appeal on a partial indemnity basis. The court fixed the costs at $25,000, inclusive of disbursements and all applicable taxes, and ordered that those costs be paid by the Township.

Barristers and Solicitors - Topic 842

Duty to court - Liability for costs - For improper conduct - The Ontario Court of Appeal reviewed the basis for a costs order against a lawyer personally under rule 57.07(1) of Rules of Civil Procedure (Ont.) - The court stated, inter alia, that a lawyer whose conduct results in costs being incurred unreasonably, or wasted, could be deprived of his or her costs or required to pay the costs of any other party - Rule 57.07(1) was not concerned with the discipline or punishment of a lawyer, but only with compensation for conduct which had caused unreasonable costs to be incurred - The first step was to inquire whether the lawyer's conduct fell within rule 57.07(1) in the sense that it caused costs to be incurred unnecessarily - A holistic examination of the lawyer's conduct produced an accurate tempered assessment - The second step was to consider, as a matter of discretion and applying the extreme caution principle enunciated in Young [v. Young (S.C.C.)], whether, in the circumstances, the imposition of costs against the lawyer personally was warranted - See paragraphs 12 to 22.

Barristers and Solicitors - Topic 842

Duty to court - Liability for costs - For improper conduct - A township passed a bylaw which required that all new exterior commercial signs be in English and French - Two applications to quash the bylaw that were heard together were dismissed - The application judge awarded the township costs totally $180,000 respecting both applications and ordered that the applicants lawyer, Bickley, pay 40 per cent of the costs ($72,000) personally pursuant to rule 57.07(1) of the Rules of Civil Procedure - The application judge considered several allegations of incidents which caused costs to be incurred without reasonable cause - She also found that there had been a serious lack of preparation by Bickley which amounted to negligence - The Ontario Court of Appeal allowed Bickley's appeal - The application judge erred in ordering costs against Bickley personally - In some instances, the application judge made no attempt to distinguish the applicants' conduct from Bickley's conduct - She erred in principle in failing to make such distinction - Bickley should not be responsible for advancing a weak case if instructed to do so by the applicants - The application judge's decision was based on the cumulative effect of what she found to be Bickley's negligent conduct which caused the township to incur costs unnecessarily - After removing some of that impugned conduct from consideration, the court could not discretely quantify what remained - Nor was the court convinced that, even if Bickley were negligent, his conduct would merit an award of costs against him personally - See paragraphs 26 to 44.

Barristers and Solicitors - Topic 849

Duty to court - Liability for costs - For conduct of proceedings - [See both Barristers and Solicitors - Topic 842 ].

Barristers and Solicitors - Topic 851

Duty to court - Liability for costs - For conduct of trial - [See both Barristers and Solicitors - Topic 842 ].

Barristers and Solicitors - Topic 852

Duty to court - Liability for costs - For causing delay or costs to be incurred without reasonable cause - [See both Barristers and Solicitors - Topic 842 ].

Practice - Topic 7103

Costs - Party and party costs - Special orders - Conduct by party or counsel (incl. breach of court rules) - [See both Barristers and Solicitors - Topic 842 ].

Cases Noticed:

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 13].

Marchand v. Public General Hospital Society of Chatham et al. (1998), 51 O.T.C. 321; 16 C.P.C.(4th) 201 (Gen. Div.), refd to. [para. 14].

Carleton v. Beaverton Hotel (2009), 96 O.R.(3d) 391 (Div. Ct.), refd to. [para. 15].

Rand Estate et al. v. Lenton et al., [2009] O.A.C. Uned. 162; 2009 ONCA 251, refd to. [para. 20].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 23].

Nazmdeh v. Ursel et al. (2010), 285 B.C.A.C. 66; 482 W.A.C. 66; 3 B.C.L.R.(5th) 277; 2010 BCCA 131, refd to. [para. 28].

Walsh v. 1124660 Ontario Ltd. et al., [2007] O.T.C. Uned. 287 (Sup. Ct.), refd to. [para. 29].

1465778 Ontario Inc. et al. v. 1122077 Ontario Ltd. et al. (2006), 216 O.A.C. 339; 82 O.R.(3d) 757 (C.A.), refd to. [para. 43].

Statutes Noticed:

Civil Procedure Rules (Ont.) - see Rules of Civil Procedure (Ont.).

Rules of Civil Procedure (Ont.), rule 57.07(1) [para. 12].

Counsel:

Allan O'Brien and Ashley Deathe, for the appellant, Kenneth Bickley;

Brian A. Crane, Q.C., and Matthew Estabrooks, for the respondents, Howard Galganov and Jean-Serge Brisson;

Ronald F. Caza and Marc Sauvé, for the respondent, The Corporation of the Township of Russell.

This appeal was heard on February 3, 2012, before Weiler, Sharpe and Blair, JJ.A., of the Ontario Court of Appeal. The decision of the court was delivered by Weiler, J.A., on June 15, 2012.