Ontario Civil

Civil Practice and Procedure


Particular orders as to costs

Lawyer culpable for knowing of misappropriation and advising clients to take untenable legal positions

Deceased had five children, and daughter, A, was granted power of attorney for property. Acting under that power of attorney, A misappropriated deceased’s funds to pay personal debts, caused deceased to incur debts for benefit of herself, her husband, and sister I, transferred title of deceased’s home to deceased and herself jointly, then to herself alone after his death, and borrowed significant funds against home. When estate litigation ensued, A, her husband and I hired lawyer D to resist claims. Litigation was eventually settled, but D’s file revealed she knew of A’s misappropriation and failed to disclose this to court and misled court. Parties made submissions on costs. Plaintiffs, C, G and L, sought costs on full recovery basis in amount of $394,727.40 plus punitive costs. Rule 57.07 of Rules of Court provides statutory jurisdiction to award costs against lawyer, as well as inherent jurisd iction as sanction for misconduct. D was culpable for knowing of misappropriation and advising clients to take untenable legal positions, as well as initiating and maintaining useless procedures resulting in more legal costs. D also misled court, permitted her clients to mislead court, and facilitated clients’ breaches of court orders. Costs were ordered in inclusive amount of $365,519.70, with 25 percent to be paid personally by solicitor, and remaining costs to be paid 75 percent by A and her husband and 25 percent by I.

BACA v. TIBERI (2018), 2018 CarswellOnt 21793, 2018 ONSC 7282, Price J. (Ont. S.C.J.).

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