Stonehocker et al. v. King et al., (1998) 113 O.A.C. 239 (CA)

• Judge: Finlayson, Goudge and Feldman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 12, 1998
• Jurisdiction: Ontario
• Citations: (1998), 113 O.A.C. 239 (CA)

Stonehocker v. King (1998), 113 O.A.C. 239 (CA)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. OC.021

Ellis Stonehocker, Donald V. Steele and Wayne Gedlaman Trustees of the Canadian Trust of the Church of Jesus Christ of Latter Day Saints and the President of The Lethbridge Stake (plaintiffs/respondents) v. Errol King, Leonard Sedun, Seppo Kanerva, Kenneth James, James and Associates, 593650 Ontario Limited, Sedun and Kanerva Architects Inc. and Berkeley Square Group Inc. (defendants/appellants)

(C24769)

Indexed As: Stonehocker et al. v. King et al.

Ontario Court of Appeal

Finlayson, Goudge and Feldman, JJ.A.

October 2, 1998.

Summary:

The plaintiffs sued the defendants, alleging participation in a dishonest scheme to defraud the plaintiff church. The plaintiffs obtained a mareva injunction and an Anton Pillar order (order of Hollingsworth, J.), and pursuant to rule 40.03 provided an undertak­ing concerning any damages to the defen­dants. The plaintiffs settled the action with respect to the defendants other than Kenneth James and James and Associates. The plain­tiffs subsequently sought leave to discontinue the action against those defendants. At the same time, those defendants moved for an order dissolving the order of Hollingsworth, J., and dismissing the action against them with solicitor and client costs. A motions judge dissolved the order of Hollingsworth, J., and dismissed the action with party and party costs. The defendants (Kenneth James and James and Associates) appealed. At issue was whether the motions judge erred in not granting costs on a solicitor and client basis in view of the undertaking as to damages given by the plaintiffs when they obtained the injunction.

The Ontario Court of Appeal allowed the appeal, set aside the order relating to costs and substituted an order on the undertaking comprising costs on a solicitor and client basis. The court also awarded the defen­dants/appellants solicitor and client costs of their motion.

Injunctions - Topic 1668

Interlocutory or interim injunctions - Un­dertaking as to damages - Damages defined - Costs - The plaintiffs sued the defen­dants, alleging participation in a dishonest scheme to defraud the plaintiff church - The plaintiffs obtained a mareva injunction and an Anton Pillar order (order of Hol­lingsworth, J.), and provided an under­taking concerning damages to the defen­dants - The plaintiffs subsequently sought leave to discontinue the action against the defen­dants - At the same time, the defen­dants moved for an order dissolving the order of Hollingsworth, J., and dismissing the action against them with solicitor and client costs - A motions judge dissolved the order of Hollingsworth, J., and dis­missed the action with party and party costs - On appeal, the Ontario Court of Appeal held that the motions judge erred in failing to consider whether costs fell within the ambit of the plaintiffs' under­taking as to damages - The court set aside the order relating to costs and substituted an order on the undertaking comprising costs on a solicitor and client basis.

Practice - Topic 7408

Costs - Solicitor and client costs - Solicitor and client costs as damages - [See Injunc­tions - Topic 1668 ].

Practice - Topic 7470

Costs - Solicitor and client costs - Entitle­ment to solicitor and client costs - Un­proved allegation of fraud - [See In­junc­tions - Topic 1668 ].

Cases Noticed:

Young v. Young et al., (1989), 24 R.F.L.(3d) 193 (B.C.S.C.), revd. (1990), 75 D.L.R.(4th) 46 (B.C.C.A.), affd. [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; [1993] 8 W.W.R. 513; 108 D.L.R.(4th) 193; 84 B.C.L.R.(2d) 1; 18 C.R.R.(2d) 41; 49 R.F.L.(3d) 117, consd. [para. 16].

Nelson Burns & Co. et al. v. Gratham Industries Ltd. et al. (1987), 25 O.A.C. 89; 23 C.P.C.(2d) 279 (C.A.), refd to. [para. 19].

Viewager Construction Co. v. Rush & Tompkins Construction Ltd., [1965] S.C.R. 195, refd to. [para. 20].

Wasaga Beach (District) v. Fielding, [1947] O.R. 321 (H.C.), affd. [1947] O.R. 1012 (C.A.), refd to. [para. 20].

Israel Discount Bank of Canada v. Genova (1992), 13 C.P.C.(3d) 112 (Ont. Gen. Div.), consd. [para. 21].

Deisler v. United States Fidelity Co., [1917] 3 W.W.R. 214 (B.C.C.A.), affd. (1917), 59 S.C.R. 676, consd. [para. 23].

Digital Equipment Corp. v. Darkrest Ltd., [1984] Ch. 512, refd to. [para. 27].

Renshaw (John F.)(Canada) Inc. v. Cap­tiva Investments Ltd. (1989), 70 O.R.(2d) 458 (H.C.), refd to. [para. 27].

Apotex Inc. v. Egis Pharmaceuticals (1990), 2 O.R.(3d) 126 (Gen. Div.), consd. [para. 31].

Lawson v. Toronto Hospital Corp. et al. (1991), 52 O.A.C. 186 (Gen. Div.), consd. [para. 33].

Coran v. Doyle, [1992] O.J. No. 991 (Gen. Div.), consd. [para. 34].

Singdeer Investments Ltd. v. Holiday Inns Inc. (1994), 47 A.C.W.S.(3d) 27 (Ont. Gen. Div.), consd. [para. 35].

Glanford Aviation Services Ltd. v. Marsh (1993), 42 A.C.W.S.(3d) 794 (Ont. Gen. Div.), consd. [para. 36].

Yang v. Mao (1995), 23 O.R.(3d) 466 (Gen. Div.), consd. [para. 37].

Mele v. Thorne Riddell (1997), 32 O.R.(3d) 674 (Gen. Div.), consd. [para. 39].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 40.03 [para. 6].

Authors and Works Noticed:

Spry, I.C.F., The Principles of Equitable Remedies (5th Ed. 1997), p. 487 [para. 28].

Counsel:

V. Ross Morrison, for the appellants;

Russell D. Laishley, for the respondents.

This appeal was heard on August 12, 1998, before Finlayson, Goudge and Feldman, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Finlayson, J.A., and was released on October 2, 1998.