Children's Aid Society of the Regional Municipality of Waterloo v. C.A.D.
Attis v. Ontario
The focus of this case was an appeal by Legge & Legge, Barristers and Solicitors ("the firm") from the order of Cullity J on September 10, 2010. Cullity J. ordered the firm to indemnify the plaintiffs for costs awards previously made in this action, including costs awarded to the Attorney General (AG) of Canada in a previous appeal to the Court (sum of $40,000) as well as costs of an unsuccessful application for leave to the Supreme Court of Canada ($1,086.10). At no point did the AG request that these costs be borne by the appellants.
In November 2009, the AG brought a motion before Cullity J. seeking to reopen the issue of costs, and requested that the costs awarded to the AG throughout become the responsibility of the appellants. The motions court held that the plaintiffs had not authorized the appellants to bring the action. because they were not properly advised as to their potential exposure to costs. At the hearing, Cullity J. agreed with the appellants that he lacked jurisdiction. However, he adjourned the motion sine die in order to give the AG the opportunity to amend its motion in order to proceed under Rule 15.02(a) of the Rules of Civil Procedure, O. Reg. 575/07.
Rule 15 is designed to terminate proceedings where a named plaintiff has not authorized commencement. The appellant court found that, without doubt, the proceedings were commenced with the plaintiff's authority. Th Court stated that it is for the aggrieved party to take steps if there is any issue regarding legal advice received before conferring that authority. The plaintiff Attis took these steps, as she commenced proceedings in negligence against the appellant, seeking damages of $250,000.
The Court agreed with the appellant's assertion that the motions judge misapplied the law of breach of warranty of authority. Cullity J. ordered the appellants to pay the respondent's costs for "breach of their implied warranty of authority". The Court noted that since Ms. Attis and Ms. Tesluk were destitute, even if they provided had authority to Mr. Legge and lost, the Respondent would not have been able to recover the costs from them. Moreover, the Court noted that awarding costs to the AG would have the effect of putting the AG in a better position than if the action proceeded with authority and failed.
Additionally, the appellants claimed that the procedures adopted by Cullity J. were unfair and that they created unnecessary multiplicity of proceedings. The Court concurred with the appellants that Cullity J.'s ruling led to a multiplicity of legal proceedings, which should preferably have been avoided. The motions judge was aware of Ms. Attis' civil proceeding and the almost identical relief sought and thus should have directed the action to proceed. This would have engaged all the routine pre-trial mechanisms.
For the foregoing reasons, the Court allowed the appeal and set aside the order of Cullity J.