Costs on a Motion – Allegations that impugn the professional integrity of opposing counsel and are unproven warrant a punitive award of costs and will result in an award on the substantial indemnity scale.
Released October 20, 2015 | Full Decision [OTLA Document Bank]
Facts
Plaintiff brought an action for damages after the defendant terminated benefits under a disability policy. In January 2015, the defendant moved for an order removing the firm of Larmer Stickland P.C. as counsel for the plaintiff. Valin J. dismissed the motion and held:
In the event they are unable to agree on the issue of costs, counsel may obtain an appointment from the trial coordinator in North Bay to address the matter by way of long distance telephone conference.
The defendant moved for leave to appeal Valin J.’s motion. Ellies J. dismissed the motion for leave.
The parties settled their costs on the motion for leave. This decision relates to their dispute over costs on the initial motion.
Issues
Is the plaintiff entitled to an award of costs? If yes, on what scale?
Holding
The plaintiff is entitled to an award of costs on the substantial indemnity basis.
Reasoning
A motion to remove an adverse party’s counsel from the record will only be granted if counsel of record has acted inappropriately, in bad faith, or where s/he has been clearly derelict in his/her duties as an officer of the court.
The defendant’s motion to remove Mr. Larmer as the plaintiff counsel of record placed Mr. Larmer’s professional integrity squarely in issue and its motion failed. Allegations that impugn the professional integrity of counsel for an adverse party, which are found to be unproven, warrant a punitive award of costs. In this case costs were awarded to the plaintiff in the amount of $50,537.03 inclusive of HST and disbursements.
