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Legal Profession - Barristers and solicitors - Liability - Liability for costs

Thursday, July 07, 2016 @ 8:00 PM  

Appeal by Slansky, counsel for the plaintiff, from a decision requiring him to pay costs personally. The plaintiff, Best, became Slansky’s client in 2013. Prior thereto, the plaintiff was found in contempt in 2010 for failure to pay a costs award following the 2007 stay of his action on jurisdictional grounds. The plaintiff left Canada rather than purge his contempt. Upon his return, his application to purge his contempt on the basis of perjury, conspiracy and fraud was refused and he was jailed for 60 days. Slansky represented the plaintiff on appeal. The Court of Appeal refused to remove counsel for the opposing parties, affirmed the contempt finding and sanction, and awarded costs to the respondents on a full indemnity scale. Subsequent attempts at review and appeal were refused. The costs award remained unpaid. In 2014, the plaintiff commenced a new action against 39 defendants alleging various torts and conspiracies. Counsel for the respondents advised Slansky of their intent to contest jurisdiction and/or have the action struck, and requested that he not note their clients in default. Slansky proceeded to have the respondents noted in default for their failure to serve a defence and refused to agree to set aside the noting until just prior to a motion by the respondents. The respondents were awarded substantial indemnity costs due to the plaintiff’s conduct. An appeal from the costs order was dismissed. The action was subsequently struck as an abuse of process. Slansky was ordered to pay costs personally, in the sum of $84,000, on a joint and several basis with the plaintiff. Slansky appealed.

HELD: Appeal dismissed. The order under appeal did not result from procedural unfairness. Slansky had adequate notice throughout the proceeding of an intention to seek costs against him personally. The meritless nature of the action was but one factor in the costs award, as the finding that the action constituted an abuse of process was also cited. The motion judge exercised her discretion as to costs with extreme caution, and her decision was entitled to deference. The judge’s ruling was supported by the unassailable finding that Slansky wasted costs unnecessarily by acting on unreasonable instructions or providing unreasonable advice on the scheduling of the respondents’ jurisdiction motion. There was no error in finding that the pleading included accusations of criminal misconduct against opposing counsel that had repeatedly been judicially rejected as baseless. There was no basis for interfering with the motion judge’s discretionary decision to order Slansky to pay a portion of the costs wasted.