



COURT OF APPEAL
    FOR ONTARIO

CITATION: Hampton Securities Limited v. Dean, 2018 ONCA 262

DATE: 20180316

DOCKET: M48840 (C64908)

Fairburn J.A. (Motions Judge)

BETWEEN

Hampton Securities Limited

Appellant (Moving Party)

and

Christina Nicole Dean

Respondent (Responding Party)

Sara J. Erskine and David Barbaree, for the moving party

Christopher J. Somerville and Daphne Hooper, for the
    responding party

Heard: February 27, 2018

COSTS ENDORSEMENT

[1]

On March 2, 2018, I dismissed the appellants motion for a stay pending
    appeal of a mandatory order to amend a Notice of Termination filed with the
    Investment Industry Regulatory Organization of Canada:
Hampton Securities
    Ltd. v. Dean,
2018 ONCA 216. The court invited written costs submissions.
    The submissions have been received and reviewed. The parties are agreed that
    costs should be fixed in the amount of $3,500.00. They part company on the entitlement
    to costs.

[2]

The respondent maintains that she was successful on the motion and that
    costs should be paid in the normal course, within 30 days.

[3]

The appellant advances four reasons for why it says that the entitlement
    to costs should be left to the panel hearing the appeal. The appellants reasons
    are catalogued in italics below, along with my reasons for rejecting them. The
    appellant maintains as follows:

(1)

If the appellant succeeds
    on appeal, it will demonstrate that the mandatory order to amend was made in
    error.

This reasoning conflates the
    success on a motion with the merits of an appeal. Parties do not enjoy
ex
    post facto
success on a motion only because they succeed on appeal. If this
    position were to be accepted, then all costs arising from motions would await
    the outcome of the appeal. The success of the motion is assessed at the time
    that the motion is decided. The respondent was clearly successful on this
    motion.

(2)

The appellant had to
    bring the motion out of concern that the appeal would be rendered moot if it
    failed to do so.  By bringing the motion, the appellant argues that they now
    know that the appeal is not moot.

The appellants concern about
    mootness was unfounded and the issue was decided against them. In any event,
    there was no need for a pre-emptive order dealing with this issue. Even if the
    respondent raised a concern about mootness during the appeal proper, the
    appellant could have responded to the argument then.

(3)

The appellant argues
    that the respondents counsel made inappropriate allegations about the appellant
    and the appellants counsel and that the court should distance itself from the
    respondents counsels conduct.

Although I recall a brief comment during
    oral submissions of the variety alleged, the court interjected immediately and
    counsel moved on. As for the respondents comments about the appellant, they
    are rooted in the trial judges findings of fact.

(4)

The appellant relies on
    a suggestion that the respondent has disclosed an arrangement with her counsel
    whereby her counsel only collects fees when court orders are paid. Embedded in
    this argument seems to be a suggestion that because the respondent will not be
    out of pocket if the costs are not paid, there is no rush to pay them.

This argument is without merit. Regardless
    of the arrangements between counsel and client, counsel need to be paid for
    their work.

[4]

There is no reason to delay the payment of costs. Accordingly, the
    respondent is entitled to her costs of the motion fixed at $3,500 to be paid
    within 30 days of the date of this order.

Fairburn J.A.


