1. Society of Lloyd's v. Saunders, [2001] O.J. No. 5144
Society of Lloyd's v. Saunders, [2001] O.J. No. 5144
Ontario Judgments
Ontario Court of
Appeal
Toronto, Ontario
Laskin, Goudge and Feldman JJ.A.
December 11,
2001.
Docket Nos.
C34005-C34008
[2001]
O.J. No. 5144 | 58 C.P.C. (6th) 1 | 2001 CarswellOnt 9734
Between The Society of Lloyd's, applicant (respondent in appeal),
and Gerhard Emil Meinzer, also known as G.E. Meinzer, respondent (appellant in appeal) And between The
Society of Lloyd's, applicant (respondent in appeal), and Paul F. Saunders,
also known as P.F. Saunders, respondent (appellant in appeal) And between The
Society of Lloyd's, applicant (respondent in appeal), and Allan Milton Paul
Smart, also known as A.M.P. Smart, respondent (appellant in appeal) And between
The Society of Lloyd's, applicant (respondent in appeal), and Donald Elmer Stringer,
also known as D.E. Stringer, respondent (appellant in appeal)
(8 paras.)
Case Summary
Practice —
Costs — Appeals — Costs of appeal — Novel questions — Combined appeals by
related parties.
Application by the appellants, Saunders and others, for there to
be no order of costs against them in the appeal. The appellants were
unsuccessful in their appeal, but argued that they should not have costs
against them because they joined all of their appeals together thereby
streamlining the litigation. In addition, their appeal involved a novel point
of law in respect of the application of public policy in the enforcement of
foreign judgments. The appellants were not related to one another and each had
a separate contract with the Society of Lloyd's. After the argument of the
appeal, the judgments against four of the appellants were satisfied by the
Society with funds available to them in England. The Society argued that they
should have their costs against the appellants on a joint and several basis and
pointed out that two of the grounds raised by the appellants were not novel
points of law.
HELD: Application dismissed.
The Society
was granted its costs of the appeal on a several basis, pro rata, with the
exception of its costs against the four appellants whose judgments had been
satisfied. The submissions of the appellants regarding the novelty of one of
the legal issues raised and the streamlining of the litigation were not
sufficient grounds to depart from the normal rule that costs of the appeal followed
the event. However, it was not appropriate for the costs against the appellants
to be on a joint and several basis as they were defending a claim and not
bringing one.
Counsel
Alan Lenczner Q.C., Sheila Block and
Glenn Smith, for the appellants. Harvey Chaiton, Mark
Hartman and George Benchetrit, for the respondent.
The judgment of the Court was delivered by
FELDMAN J.A.
1 The reasons for judgment dismissing the appeal provided
that costs would follow the event unless counsel wished to bring to the
attention of the court any basis for a different disposition. The parties have
made submissions with respect to the costs disposition on this appeal.
2The appellants made three submissions with respect to
costs:
(1)
There
should be no order of costs against them either on appeal or below for two
reasons:
(a)
the
appellants agreed to a procedure where they all joined together in one proceeding
which had the effect of shortening and streamlining the litigation and thereby
reducing Lloyds' costs;
(b)
the
case involved a novel point of law in respect of the definition and application
of "public policy" in the context of enforcement of foreign
judgments.
(2)
If
costs are awarded against the appellants, they should be on a several, pro rata
basis only and not a joint and several basis. The costs order below should be
modified in the same way. The appellants are unrelated to each other and each had
separate contracts with Lloyds. Without this procedure Lloyds would have to
have litigated separately with each of them. If Lloyds chose to enforce the
costs order against the appellant most able to pay, the result would be an
onerous and unfair one for that appellant. An order of joint and several
liability for costs could militate against use of this expeditious procedure in
future cases.
(3)
Four
of the appellants should in any event have no costs ordered against them,
because the judgments against them have been satisfied by Lloyds with funds
available to them in England, but which Lloyds declined to apply to the
judgments until after the argument of the appeal.
3The respondent's position is that costs on the appeal be awarded
to the respondent against the appellants on a joint and several basis.
(1)
The
respondent disputes the novelty of the public policy argument and relies on the
fact that the appellants raised two other grounds of appeal which were not
novel points of law.
(2)
The
respondent states that the joint and several award is justified because the
appellants joined together and were represented by the same counsel, and it
would be inequitable and unfair to Lloyds to compel it to pursue each appellant
for that person's share of the costs.
(3)
The
four appellants whose judgments have now been satisfied did join in the appeal.
Therefore they should be responsible for costs. In respect of the costs below,
as this issue was raised after oral argument of the appeal and was dealt with
in the appeal judgment, that request is now foreclosed.
4The submissions of the appellants with respect to the novelty of
one of the legal issues raised, and the efficiency of the procedure used, are
in my view not sufficient grounds for this court to depart from the normal rule
that costs of the appeal follow the event.
5The costs against the appellants should be on a several
basis, pro rata, not joint and several. Although the appellants joined
together, they were defending a claim, not bringing one, as in the cases of
King v. On-Stream Natural Gas Management Inc. (1993), 21 C.P.C. (3d) 16
(B.C.S.C.), Liu v. Sung (1995), 37 C.P.C. (3d) 44 (B.C.S.C.) and Filipovic v. Upshall, [1998] O.J. No. 4498 (Gen. Div.)). In
Bossé v. Mastercraft Group Inc. (1995), 123 D.L.R.
(4th) 161 (Ont. C.A.), where a joint and several order of costs was made
against the plaintiffs who were defendants by counterclaim on a successful
motion for summary judgment, the order was only made on consent, and in giving
effect to that consent, this court noted how onerous and potentially unfair it
could be. In my view, there is no basis for the appellants to be penalized with
an unusually onerous costs order in this case.
6Although the appellants' initial submission sought a
reversal of Swinton J.'s order on the joint and several issue in respect of the
costs below, in their further submission, requested by the court, the
appellants no longer sought that relief. In any event, I would not disturb the
order of Swinton J., as it was not specifically appealed in this proceeding.
7I agree with the appellants that in the circumstances that
occurred it would be just and fair that the four appellants whose judgments
were satisfied while this case was under reserve should not bear any costs. No
order of enforcement goes against them because their judgments have been
satisfied. Had they been the only appellants, the case would have become moot
while under reserve and in those circumstances, it is likely that no reasons
would have issued in favour of Lloyds. However, as
the issue of their costs below was raised while the case was under reserve and
dealt with in the reasons, the costs order below against them will stand.
RESULT
8The appeal is dismissed with costs against the appellants
(other than Louis Ceroni, Hugh Hendrie, Eric Lane and
Jacqueline Levin) on a several basis, pro rata. Counsel for the appellants
asked in written submissions that this court fix the amount of the costs at
$7,500. The respondent declined to respond on the basis that the court had not
asked for a suggested figure at which to fix the costs. I agree that the amount
suggested by the appellants appears to be a reasonable one, and suggest that
the parties try to resolve the amount by agreement. Otherwise the costs of the
appeal are to be assessed.
FELDMAN J.A.
LASKIN J.A. --
I agree.
GOUDGE J.A. --
I agree.
End
of Document