Lawyers’ fees should only apply to plaintiffs’ net award after costs were satisfied

Civil Practice and Procedure – Costs – Effect of success of proceedings

Jury found that unsuccessful defendant was entirely responsible for two-car collision in which she and her husband were killed and their son, minor plaintiff, was injured. Jury found that successful defendants were not liable. Successful defendants sought order requiring plaintiffs to pay costs of successful defendants before paying their own lawyers' fees and disbursements, and order that successful defendants' costs be paid from damages jury awarded to adult plaintiffs and from costs plaintiffs recovered from unsuccessful defendant. Requested orders not made. Successful defendants argued that, based on principles in certain cases, any charging order, solicitor's lien or other order relating to plaintiffs' lawyers' fees should only apply to net funds awarded to plaintiffs after all costs awards against them had been satisfied. Successful defendants had not persuaded court to exercise discretion under s. 131 of Courts of Justice Act to make orders they had requested. Cases successful defendants had submitted in support of their position did not support it.

Rathwell-Howland v. Howland (2020), 2020 CarswellOnt 418, 2020 ONSC 390, H.J. Williams J. (Ont. S.C.J.); additional reasons (2019), 2019 CarswellOnt 1124, 2019 ONSC 749, H.J. Williams J. (Ont. S.C.J.).

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