[1] The Plaintiffs’ former solicitors seek leave to appeal from the $800 cost award made against them, personally, by Barnes, J. on April 14, 2016.
[2] This action arises from a motor vehicle accident. The Defendants brought a motion for summary judgment, seeking an order dismissing the action as the Plaintiff, having no motor vehicle insurance, was barred from bringing the action. The motion was originally returnable on January 21, 2016, but adjourned, apparently at the request of the Plaintiffs, on consent of the Defendant, to February 26, 2016.
[13] I am also mindful that the judge at first instance is due a high degree of deference. A costs award is a discretionary order and that the judge of first instance is in the best position to determine the entitlement, scale and quantum of any such award. In Gottareo Properties (Dome Inc.) v. City of Toronto, 1998 CanLII 6184 (ON CA), 1998, CanLII 6184 (ONCA), the Court of Appeal discussed the issue of deference due to a motions judge at para. 48:
Deference is desirable for several reasons: to limit the number and length of appeals, to promote the autonomy and integrity of the trial or motion court proceedings on which substantial resources have been expended, to preserve the confidence of litigants in those proceedings, to recognize the competence of the trial judge or motion judge, and to reduce needless duplication of judicial effort with no corresponding improvement in the quality of justice.
[18] The facts support an award of costs against the Plaintiffs’ former solicitors for the attendance at the February 26 hearing. The Plaintiffs’ former solicitors were still solicitors of record, not having served Andre, J.’s Order on the Plaintiffs. When they obtained the order on the 23rd, they knew of the February 26 date. Had they notified the Defendants and the Plaintiffs of Andre, J.’s order, they could have avoided the February 26 attendance.