Law Times

Page 4 June 11, 2018 • Law Times www.lawtimesnews.com Costs awarded in long-running dispute BY DALE SMITH For Law Times T he Ontario Court of Ap- peal has awarded $1,500 in costs to a lawyer in a legal battle with another lawyer that stemmed from a fee dispute between the two. On May 31, the OCA dis- missed leave to appeal by law- yer Peter Cozzi in his legal fight against lawyer Joseph Sidi- ropoulos. In Cozzi v. Sidiropoulos, 2018 ONSC 309, Cozzi brought a claim against Sidiropoulos, al- leging Sidiropoulos had failed in an undertaking to "protect" Cozzi's account after a former client of Cozzi's transferred the file to Sidiropoulos. Cozzi alleged that Sidiropou- los had not paid Cozzi's account after Sidiropoulos was instruct- ed not to do so by the client, for reasons that included that Cozzi had not properly transferred all documents as requested. The dispute was dismissed at the Divisional Court because it was brought by Cozzi outside of the limitation period, which expired in 2015. In the ruling by Justice Mi- chael Quigley of the Divisional Court in January, the court did not award costs to either side as the rebuke for wasting the court's time on a matter that should have been settled out of court. Quigley stated that neither side was entitled to costs because of their "shameful" conduct over the nine years that the matter was before the justice system. "This is a petty claim for less than $3,500 that has been taking space in our justice system for close to nine years," Quigley said in the ruling. "The conduct of both parties has been shameful, one for its disdain of a professional obliga- tion and promise and the other for having neither the energy nor the aptitude to properly pur- sue a legitimate claim on a time- ly basis." Quigley also said in this rul- ing that neither party was en- titled to costs. Cozzi later appealed to the Ontario Court of Appeal, but he was denied leave to appeal. This time, however, Sidiropoulos was awarded $1,500 in costs. Asher Honickman, partner with Matthews Abogado LLP in Toronto, who was Sidiropou- los' lawyer in the case, says that while the OCA ruling doesn't form a binding precedent be- cause the test for leave is very difficult and is different from a test on the merits, it essentially confirms what the Divisional Court determined on limitation periods. "The limitation period does operate for claims arising out of a solicitor's breach of an un- dertaking," says Honickman. "[This] is what my client has been saying since he was sued several years back, which the Small Claims Court accepted and the Divisional Court ac- cepted, and which the Court of Appeal has now chosen not to interfere with." Honickman says that while lawyers rarely know why the Court of Appeal doesn't grant leave because it doesn't give rea- sons, they can infer that a refusal to grant leave is because they don't see an issue to be resolved. Bryan Kravetz, an associate with Grinhaus Law Firm PC in Toronto, who was not involved in the case, agrees that the deci- sion not to grant leave was a sig- nal of the importance of limita- tion periods. "Limitation periods are really important here, as well as the conduct of the parties, and there are such strict rules with under- takings," says Kravetz. The decision by the Court of Appeal to grant $1,500 in costs to Sidiropoulos is seen by Hon- ickman as a win for his client. "It obviously doesn't cover all of the costs that have occurred over the nine years," says Honick- man. He says the OCA ruling is a "vindication" because the Court of Appeal is looking at the legal principles involved, rather than how much money was at stake. "Costs follow the cause," says Honickman. "Mr. Sidiropoulos has been successful at three lev- els of court now, so he's entitled to costs for that." Kravetz adds that the deci- sion to award costs is likely out of frustration from the courts that Cozzi tried to appeal the matter. "Counsel should have real- ized that this should have been done back in January when it was decided, and it should not have been appealed," says Kravetz. "Justice Quigley was pretty clear with his decision, so I think that would be a bit of a lesson, a bit of a slap for even trying to ap- peal it." Cozzi did not respond to re- quests for comment. Kravetz says the lawyers need to remember that undertakings need to be unambiguous and keep in mind the limitation pe- riods for claims. "Making clear and unam- biguous undertakings is one of the big [lessons] because that's part of the rules of professional conduct, and lawyers need to be really careful with that," he says. Edward Bergeron, founding partner of Bergeron Clifford LLP in Kingston, Ont., says it was appropriate for the OCA to dismiss leave and award costs. "If [Quigley] says that you've behaved abysmally, you should hang your head, stay home and avoid social engagements for a while," he says. Bergeron suggests that the cost award is an affirmation of Quigley's admonition about dragging the matter out unnec- essarily. "We have limitation periods and the doctrine of laches for a reason," says Bergeron. "No one should have the Sword of Da- mocles hanging interminably overhead." Bergeron says the Supreme Court of Canada has mandated a culture shift to create an envi- ronment promoting timely and affordable access to the civil jus- tice system. "For the most part, the Ontar- io bar has listened," says Bergeron. "This case is an aberration." 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