No reason to infer respondent had to decline other remunerative activity in order to work on case

Ontario civil | Civil Practice and Procedure | Costs | Effect of success of proceedings

Applicant was plaintiff in civil action against trade union and six officers and respondent law firm acted as counsel for applicant in action. Action was administratively dismissed and applicant changed counsel. Motion to set aside dismissal of action was unsuccessful. Costs order was made against applicant in favour of defendants and applicant paid costs in amount of $31,958.91. Applicant brought unsuccessful application for order that costs be reimbursed by respondent. Parties made submissions on costs. No costs order was made in favour of respondent except as to disbursements in amount of $1,381.91. There was absence of evidence about actual opportunity cost incurred and no reason to infer that respondent had to decline other remunerative activity in order to work on case. Respondent had opportunity to provide evidence in filing reply costs submissions, particularly when issue was squarely raised by applicant, but did not.

Mitchinson v. Marshall (2018), 2018 CarswellOnt 20818, 2018 ONSC 7419, R.B. Reid J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 15797, 2018 ONSC 5632, R.B. Reid J. (Ont. S.C.J.).

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