Mustang Investigations v. Ironside et al., (2010) 267 O.A.C. 302 (DC)

• Judge: Jennings, Lederman and Wilton-Siegel, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: May 28, 2010
• Jurisdiction: Ontario
• Citations: (2010), 267 O.A.C. 302 (DC);2010 ONSC 3444

Mustang Investigations v. Ironside (2010), 267 O.A.C. 302 (DC)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. JL.079

Mustang Investigations (plaintiff/appellant) v. John Ironside and Robin Hutt and Ironhut Communications and Ironhut Intel and Information Services (defendants/respondent)

(458/09; 2010 ONSC 3444)

Indexed As: Mustang Investigations v. Ironside et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Jennings, Lederman and Wilton-Siegel, JJ.

July 20, 2010.

Summary:

Mustang Investigations (Mustang) terminated Ironside's employment. Mustang sued Ironside, Ironside's common law spouse (Hutt), and two proprietorships of Hutt, alleging that Ironside had unlawfully taken confidential information from Mustang and installed it on the defendants' computers. Mustang obtained an Anton Piller order. Hutt consented to a judgment in favour of Mustang assigning her ownership interest in the hard drives of the computers to Mustang. Mustang moved for leave to discontinue the proceedings. Ironside, acting on his own behalf, opposed the motion on the ground that he required his day in court in order to vindicate his reputation.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned H98, granted leave to discontinue. Costs of the motion were payable to Ironside in the cause. The court invited the parties to make submissions as to the quantum, and in default of submissions, the court awarded nominal costs fixed at $5,000 all inclusive with Mustang being able to set off costs of $200 it had received on an interim motion. The parties made written submissions.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. M20, awarded Ironside $20,000 for counsel fee on a partial indemnity basis plus disbursements of $1,051.40 for a total award of $21,051.40 all inclusive. Mustang appealed the quantum.

The Ontario Divisional Court allowed the appeal and set aside the award of $20,000. The court affirmed the award for disbursements against which could be set off the $200 awarded to Mustang on the interim motion. The court awarded no costs of the appeal as the appeal raised issues of significant importance to the profession and to the public having recourse to the courts.

Practice - Topic 6986

Costs - Entitlement - Bars - Litigant acting on own behalf or through agent - [See Practice - Topic 7043 ].

Practice - Topic 7043

Costs - Party and party costs - Entitlement to - On discontinuance or abandonment - A plaintiff moved for leave to discontinue its action - One of the defendants (Ironside), who was self-represented, opposed the motion on the ground that he required his day in court in order to vindicate his reputation - A motions judge allowed the motion on the condition that the plaintiff pay Ironside $20,000 for counsel fee on a partial indemnity basis plus disbursements of $1,051.40 - The Ontario Divisional Court affirmed the award for disbursements of $1,051.40, but set aside the $20,000 award - Fong et al. v. Chan et al. (Ont. C.A.) provided that costs should only be awarded to self-represented litigants who demonstrated that they devoted time and effort to 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 - If an opportunity cost was proved, a self-represented litigant should only receive a moderate or reasonable allowance for the loss of time devoted to preparing and presenting the case - The motions judge here erred by ignoring the proviso regarding an opportunity cost and by awarding Ironside the partial indemnity costs that the plaintiff could reasonably have expected to have paid to a lawyer had Ironside retained one - Prior decisions erred by interpreting Fong as permitting a nominal award to be made without the self-represented litigant demonstrating that, as a result of the lawyer-like work put in on the file, remunerative activity was foregone - There was nothing in the motions judge's decision which permitted the court to infer a loss of remuneration - The court awarded no costs of the appeal as the appeal had raised issues of significant importance to the profession and to the public having recourse to the courts.

Practice - Topic 8298

Costs - Appeals - Appeal from order granting or denying costs - Requirement of leave to appeal - The Ontario Divisional Court noted that leave to appeal a costs award was rarely granted because of the deference due to the judge at first instance in exercising his or her discretion to award costs - If leave was granted, the standard of review to be applied was high - The reviewing court could only set aside a costs award if the trial judge erred in principle or if the award was plainly wrong - See paragraph 13.

Practice - Topic 8331

Costs - Appeals - Costs of appeal - Novel or important questions - [See Practice - Topic 7043 ].

Practice - Topic 8331.1

Costs - Appeals - Costs of appeal - Public interest - [See Practice - Topic 7043 ].

Practice - Topic 8425

Costs - Appeals - Grounds - Error in principle - [See Practice - Topic 8298 ].

Cases Noticed:

Fong et al. v. Chan et al. (1999), 128 O.A.C. 2; 46 O.R.(3d) 330 (C.A.), appld. [para. 8].

Boucher et al. v. Public Accountants Council (Ont.) et al. (2004), 188 O.A.C. 201; 71 O.R.(3d) 391 (C.A.), refd to. [para. 10].

Duong v. NN Life Insurance Co. of Canada (2001), 141 O.A.C. 307 (C.A.), refd to. [para. 13].

Izzard v. Goldreich et al. (2002), 159 O.A.C. 365; 2002 CarswellOnt 4780 (Div. Ct.), agreed with [para. 15].

Korhani v. Bank of Montreal et al., [2002] O.T.C. 965; 2002 CarswellOnt 4223 (Sup. Ct.), agreed with [para. 15].

Logtenberg v. ING Insurance Co. et al., [2008] O.T.C. Uned. A65; 2008 CarswellOnt 2930 (Sup. Ct.), agreed with [para. 16].

Huard v. Hydro One Networks Inc., 2002 CarswellOnt 2996 (Sup. Ct. Master), not folld. [para. 19].

White v. Ritchie, [2009] O.T.C. Uned. D56; 2009 CarswellOnt 3268 (Sup. Ct.), refd to. [para. 20].

Henderson v. Pearlman et al., [2010] O.T.C. Uned. 149 (Sup. Ct.), refd to. [para. 21].

Counsel:

Kevin D. Toyne for the plaintiff (appellant);

John Ironside in person.

This appeal was heard on May 28, 2010, by Jennings, Lederman and Wilton-Siegel, JJ., of the Ontario Divisional Court. Jennings, J., delivered the following judgment for the court on July 20, 2010.