Law Times

Law times • OctOber 29, 2012 Appeal court cuts costs order in half NEWS BY SHANNON KARI For Law Times T than $180,000, in a legal dispute over parking spaces at a suburban Ottawa shopping mall. Th e decision in Farm Boy Inc. he Ontario Court of Appeal has cut a costs award nearly in half, re- ducing the sum by more innon had mistakenly concluded that two pretrial off ers by the de- fendants off set the time spent on an unsuccessful defence of the claim for breach of contract. Th e decision on costs was "very unusual," says Stephen Vic- v. Mobius Co rp. upheld the fi nd- ing of Superior Court Justice Jen- nifer Mackinnon that a breach of contract by the defendants didn't result in an economic loss for the plaintiff s. Th e appeal court con- cluded, however, that $200,000 was an appropriate costs order for the 14-day trial instead of the $382,537 awarded by Mackinnon. In the appeal court deci- sion, the panel of justices Dennis O'Connor, Stephen Goudge , and Russell Juriansz found that Mack- tor, who acted for Farm Boy at trial and argued the costs motion at the appeal hearing. Farm Boy was initially seeking lease agreement. However, the Superior Court judge added there was no economic loss for the plaintiff s because there was still an adequate supply of parking. More than half of the time at more than $4 million in damages over the period of a 20-year lease that included two renewal peri- ods as a result of what it alleged was inadequate parking at a mall where it was the anchor tenant in the community of Orleans. Th e court heard that adequate park- ing was essential to success in the grocery business. Mackinnon found there was a breach of contract by Mobius in not providing the number of parking spaces as outlined in the LSUC sends message to lawyers who attack judges A BY GLENN KAUTH Law Times but the obligation to criticize lawyers, judges, and the conduct of Canada' although she should be allowed some leeway concerning her be- haviour while doing so, nevertheless, the Rules of Professional Con- duct require that she do so in a respectful enough manner, one that is appropriate to the judicial process," wrote Bencher Ross Murray in an Oct. 9 decision revoking the Toronto lawyer' Although Ms. Townley-Smith has not only the right, s judicial system if she believes the criticism is merited and Th e complaint against Townley-Smith originated with a copy- right dispute involving Warner Bros. and the lawyer's former s licence. client, singer Kim Baryluk, as well as a series of related matters. During the Baryluk matter and the subsequent legal pro- delineate between acceptable and inappropriate criticism. "As regional senior Justice [Charles] Hackland put it, there is a con- trast between zealous advocacy, which is a good thing, and in- appropriate advocacy, which is a problematic thing. Th e panel fi nds that Ms. Townley-Smith has clearly crossed this line. Townley-Smith didn't attend the proceedings and the LSUC In its penalty decision this month, the panel attempted to s behalf. " faced repeated diffi culties in contacting her about the hearing dates. Law Times also couldn't reach her for comment last week. Besides disbarring her, the panel made a $30,000 costs order against her. LT CANADA LAW BOOK® ceedings, Townley-Smith made allegations of conspiracy and corruption against a number of players in the justice system. Her complaints included a lawsuit she launched against two Superior Court judges and a master on Baryluk' Law Society of Upper Canada hearing panel has sent a message about how lawyers can criticize the judicial sys- tem in its decision disbarring Kimberly Townley-Smith. " trial focused on the issue of the breach of contract. "Th e trial would have been considerably shorter had the defendants con- ceded the issue of liability on which the court ultimately found against them," wrote Mackinnon. "Despite their overall success in the action, consideration can be given to this as a factor in reduc- tion of the amount of costs." Mobius made an off er to set- that the trial involved consider- able time spent on the issue of breach of contract, were never reduced," says Victor. "Th ere shouldn't have been "our costs an off set," he adds. Th e Court of Appeal found the trial judge's conclusion that tle in 2009 for $30,000 that was open for four days. Two weeks before trial, the defendant said it would agree to have the ac- tion dismissed without costs. the breach didn't cause an eco- nomic loss "was consistent with a common-sense approach to the evidence" in dismissing Farm Boy' it disagreed with her approach to costs. "Th ese off ers do not s appeal on damages. But Th e off er was open for two days. Th e trial judge noted that while these proposals didn't qualify as Rule 49 off ers, "the weight to be accorded those off ers off sets the time spent on the unsuccessful defence of a breach of contract." While Mackinnon agreed PAGE 3 support any such off set. Th e March 2009 off er came well be- fore the picture at trial became clear and cannot play such a role. Th e May 2010 off er contained no element of compromise and should not have been used to off set the trial time spent on the defence of the breach of contract issue. yers acting for Mobius on the appeal, says the defendant was asking the Court of Appeal to uphold the original costs award. "We argued that it was a discre- tionary decision and she [Mack- innon] was owed deference. She considered the diff erent factors to determine how they should af- fect the quantum," says Book. LT cluded that a "fair and reasonable" award was $200,000 in costs. Hilary Book, one of the law- " Th e three-judge panel con- GAIN INSIGHT INTO THE LEGAL DYNAMICS OF A REAL ESTATE TRANSACTION LECTURES IN REAL ESTATE TRANSACTIONS PAUL PERELL, B.A. (TORONTO), LL.B., LL.M., Ph.D. (OSGOODE), L.S.M. Gain insight into the mechanics and legal dynamics of a real estate transaction. 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