



COURT OF APPEAL FOR ONTARIO

CITATION: Weenen v. Biadi, 2018 ONCA 393

DATE: 20180423

DOCKET: M48284 (C61429)

Epstein, Hourigan and Paciocco JJ.A.

BETWEEN

Matthew Weenen

Plaintiff

(Respondent/Responding Party)

and

Graziano Biadi

Defendant

(Appellant/Non-Party)

Sarah Turney and Anastasia Reklitis, for the moving
    party, Fasken Martineau DuMoulin LLP

Yan David Payne, for the responding party, Matthew Weenen

Heard: In writing

COSTS ENDORSEMENT

[1]

On March 21, 2018, we dismissed the motion of Fasken Martineau DuMoulin
    LLP (the Law Firm) for a charging order under s. 34(1) of the
Solicitors
    Act
, R.S.O. 1990, c. S.15, or a lien under the courts inherent
    jurisdiction, charging the damages and costs awarded to the responding party
    client, Matthew Weenen, at the trial of this action and on appeal. On March 29,
    2018, the Law Firm wrote to the panel asking for an opportunity to make
    submissions in favour of a reconsideration of the decision. We denied this
    request in an addendum dated April 9, 2018.

[2]

The issue now is the costs of both the motion and the request for reconsideration.

[3]

We have received and reviewed the parties submissions as to costs.

[4]

Mr. Weenen seeks substantial indemnity costs of $25,214.42. Among other
    arguments advanced, Mr. Weenen says that given the lack of supporting evidence,
    the motion was without merit. Mr. Weenen also submits that the Law Firm continues
    to deliberately attempt to burden him with additional costs.

[5]

The Law Firms position is that no costs should be awarded;
    alternatively, costs should be fixed in the aggregate amount of $2,500. The Law
    Firm advances three arguments to support this position: (i) that the issue of
    the charging order or lien was novel and of public importance; (ii) that the
    jurisdiction issue was directed to be addressed by this court by Brown J.A.;
    and (iii) that the costs sought by Mr. Weenen are unreasonable. The Law Firm
    also seeks an order permitting it to set off any cost award against the legal
    fees owed to it by Mr. Weenen.

[6]

Mr. Weenen
is entitled to his costs. However, we
    do not see any grounds for awarding costs on a substantial indemnity basis.

[7]

The amounts claimed by Mr. Weenen appear high,
    but we note that the Law Firm did not produce its own bill of costs.

[8]

Accordingly, taking the various factors set out in r.
    57.06 into account, we award costs to Mr. Weenen in the amount of $12,000,
    inclusive of interest and HST. We refuse the Law Firms request that these
    costs be set off against legal fees associated with the underlying action,
    given that the amount, if any, that will be owing to the Law Firm after the
    pending assessment is not yet known.

Gloria Epstein J.A.

C.W. Hourigan J.A.

David M. Paciocco J.A.


