Litigation involved lengthy and complex attempt by plaintiffs to recoup significant financial investment that was made as result of acts of deceit and material non-disclosure by defendants. Plaintiffs’ counsel sought permission to withdraw mid-trial for non-payment of outstanding legal fees. Motion was dismissed. Plaintiffs applied for costs. Application granted. Motion was found to be improper and unprofessional and would result in significant prejudice to plaintiffs and to administration of justice, but conduct was not described in egregious terms that might warrant costs on elevated scale. Lawyer continued to vigorously to purse plaintiffs’ interests and achieved stellar result. This was not rare and exceptional circumstances that warranted elevated award of costs. Plaintiffs were entitled to partial indemnity costs fixed at $25,000, inclusive of HST and disbursements. It would be manifestly unjust not to allow counsel to deduct amount of award from outstanding account for legal services, given relationship between law firm’s account and costs award.
Todd Family Holdings Inc. v. Gardiner (Dec. 18, 2015, Ont. S.C.J., McIsaac J., Oshawa CV-76324-11) Additional reasons to decision at 259 A.C.W.S. (3d) 423. 262 A.C.W.S. (3d) 44.