Fong v. Chan (1999), 128 O.A.C. 2 (CA)
MLB headnote and full text
Temp. Cite: [1999] O.A.C. TBEd. DE.018
Man Cheng Fong, Fat Leon Kuan, Kun Chok Chiang, Wun Man Vong, Moon Lam Mak, and Ronald Fook Yui Fung (plaintiffs/respondents in appeal) v. Kam Cheung Chan, also known as Kam Chan, Diane Chan, Thorold Inn Ltd., 937555 Ontario Inc., 937556 Ontario Inc., Murck Holdings Ltd., 937559 Ontario Inc., Lighting Unlimited Corporation Limited and L.U. Fixtures Inc., carrying on business as Lighting Unlimited, 881062 Ontario Limited, L.U. Realty Inc., Heart Lake Lighting Corporation, 932379 Ontario Limited, Solid Platinum Investments Limited, Ken Li, 896236 Ontario Limited and Steven Mucha and Chanward Investments Limited, Yu Fashions Limited, 881092 Ontario Inc., 903826 Ontario Inc. and 903845 Ontario Inc. (defendants/appellants)
(C31594)
Indexed As:
Fong et al. v. Chan et al.
Ontario Court of Appeal
Carthy, Feldman and Sharpe, JJ.A.
December 8, 1999.
Summary:
Defendants’ counsel brought a motion to, inter alia, have the plaintiffs’ law firm removed because of an alleged conflict of interest. The plaintiffs’ law firm was represented by separate counsel. The entire motion was dismissed and solicitor and client scale costs were awarded against the defendants’ law firm personally. Separate costs were awarded against the defendants. The defendants’ law firm appealed the order made against it personally.
The Ontario Court of Appeal, in a decision reported at 97 O.A.C. 317, allowed the appeal. The motions judge did not give the defendants’ law firm a reasonable opportunity to be heard as required by rule 57.07. Further, the facts did not support the making of such an order.
The Ontario Court of Appeal, in a decision reported at 102 O.A.C. 161, awarded the defendants’ law firm its costs of the appeal, assessed on a party and party basis, to be paid 50% by the plaintiffs and 50% by the plaintiffs’ law firm, where the plaintiffs’ law firm was a party both on the motion and on the appeal. The defendants’ law firm was represented by Murray, who was not a member of the firm.
Costs were assessed. The assessment officer awarded the defendants’ law firm an allowance for Murray’s counsel fee, but held that the firm was not entitled to an allowance for the work of certain salaried associates, a partner, and an articling student, all of whom assisted Murray in preparing the appeal. The defendants’ law firm appealed the order.
The Ontario Court of Appeal allowed the appeal and remitted the matter to the assessment officer to determine whether the amounts claimed for the salaried associates, partners and articling student were reasonable.
Practice – Topic 7049
Costs – Party and party costs – Entitlement to party and party costs – Self-represented lawyer – A law firm was represented by Murray, who was not a member of the firm – Costs were assessed – The assessment officer awarded the firm an allowance for Murray’s counsel fee, but held that the firm was not entitled to an allowance for the work of certain salaried associates, a partner, and an articling student, all of whom assisted Murray in preparing the appeal – The firm appealed – The Ontario Court of Appeal discussed the extent to which self-represented lawyers were entitled to recover costs in litigation to which they were parties – The court held that the firm’s claim to an allowance for the salaried employees was justified by s. 36 of the Solicitor’s Act (Ont.) and the claim for the partner’s work was allowable at common law.
Practice – Topic 7049
Costs – Party and party costs – Entitlement to party and party costs – Self-represented lawyer – [See second
Practice – Topic 7050
].
Practice – Topic 7050
Costs – Party and party costs – Entitlement to party and party costs – Successful party not represented by counsel – The Ontario Court of Appeal stated that “[a] rule precluding recovery of costs, in whole or in part, by self-represented litigants would deprive the court of a potentially useful tool to encourage settlements and to discourage or sanction inappropriate behaviour. … I would add that nothing in these reasons is meant to suggest that a self-represented litigant has an automatic right to recover costs. The matter remains fully within the discretion of the trial judge, and … there are undoubtedly cases where it is inappropriate for a lawyer to appear in person, and there will be cases where the self-represented litigant’s conduct of the proceedings is inappropriate.” -See paragraphs 24 to 25.
Practice – Topic 7050
Costs – Party and party costs – Entitlement to party and party costs – Successful party not represented by counsel – The Ontario Court of Appeal stated that “… self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. … all litigants suffer a loss of time through their involvement in the legal process. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity.” – See paragraph 26.
Cases Noticed:
London Scottish Benefits Society v. Chorley (1884), 13 Q.B.D. 872 (C.A.), refd to. [para. 7].
Lalancette v. Walford, [1927] 4 D.L.R. 642 (Ont. S.C.), refd to. [para. 7].
Johnston v. Ryckman (1903), 7 O.L.R. 511 (Div. Ct.), not folld. [para. 8].
Fanaken v. Bell, Temple (1985), 49 C.P.C. 212 (Ont. Assessment Officer), refd to. [para. 11].
Tory, Tory Deslauriers and Binnington v. Concert Productions International Inc. (1986), 14 C.P.C.(2d) 103 (Ont. Assessment Officer), refd to. [para. 11].
Argiris v. Canadiana Realty Ltd., [1998] O.J. No. 2146, refd to. [para. 11].
Watson v. Holyoake (1986), 15 C.P.C.(2d) 262 (Ont. H.C.), refd to. [para. 11].
Jaffe v. Dearing (1992), 7 C.P.C.(3d) 225 (Ont. Gen. Div.), refd to. [para. 12].
Endicott v. Halliday (1982), 28 C.P.C. 114 (Assessment Officer), refd to. [para. 13].
Wright and McTaggart v. Soapac Industries Ltd. (1990), 75 O.R.(2d) 394 (Assessment Officer), refd to. [para. 13].
Gunning Estate v. Abrams, [1997] O.J. No. 4364 (Ont. Gen. Div.), refd to. [para. 14].
Jouppi v. Guy (1997), 33 O.T.C. 107 (Gen. Div.), refd to. [para. 14].
Fellowes, McNeil v. Kansa General Insurance Co. et al. (1997), 49 O.T.C. 339; 37 O.R.(3d) 464 (Gen. Div.), refd to. [para. 14].
Buckland v. Watts, [1970] 1 Q.B. 27 (C.A.), refd to. [para. 17].
Millar v. Macdonald (1892), 14 P.R. 449 (Div. Ct.), refd to. [para. 18].
McBeth v. Dalhousie University (1986), 72 N.S.R.(2d) 224; 173 A.P.R. 224; 10 C.P.C.(2d) 69 (C.A.), refd to. [para. 19].
Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83; 33 D.L.R.(4th) 174; 38 C.C.L.T. 184; 25 C.R.R. 321; [1987] 1 W.W.R. 577; 87 C.L.L.C. 14,002, refd to. [para. 19].
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; [1989] 2 W.W.R. 289; 56 D.L.R.(4th) 1; 34 B.C.L.R.(2d) 273; 36 C.R.R. 193; 25 C.C.E.L. 255, refd to. [para. 19].
Johnston v. Law Society of Prince Edward Island (1988), 73 Nfld. & P.E.I.R. 239; 229 A.P.R. 239; 54 D.L.R.(4th) 18 (P.E.I.C.A.), refd to. [para. 19].
Skidmore et al. v. Blackmore (1995), 55 B.C.A.C. 191; 90 W.A.C. 191; 122 D.L.R.(4th) 330 (C.A.), refd to. [para. 20].
Kendall v. Hunt (No. 2) (1979), 106 D.L.R.(3d) 277 (B.C.C.A.), refd to. [para. 20].
Statutes Noticed:
Solicitor’s Act, R.S.O. 1990, c. S-15, sect. 36 [para. 5].
Authors and Works Noticed:
Lush, Practice (3rd Ed.), p. 896 [para. 16].
Counsel:
Eric R. Murray, Q.C., for the appellants;
R. Douglas Elliot and Won J. Kim, for the respondents.
This appeal was heard on November 5, 1999, by Carthy, Feldman and Sharpe, JJ.A., of the Ontario Court of Appeal. Sharpe, J.A., delivered the following decision for the Court of Appeal on December 8, 1999.
