O'ferrall ja

14.37: Single appeal judges

Case Summary

Ms. Kostic filed an Originating Application seeking indemnity from CIBC Trust Corporation (“CIBC”) for her legal fees in related Actions in which she was a Defendant. Associate Chief Justice Rooke, in Case Management, granted Kostic’s Originating Application and found that CIBC was liable to pay defence costs for Kostic in one related Action, and possibly others on further Application (“Rooke Order”).

CIBC appealed Rooke A.C.J.’s Decision, and sought a Stay of the Rooke Order and a direction expediting the Appeal. Kostic cross-appealed and sought declaratory relief, specifically declarations that CIBC: was under an immediate and ongoing requirement to fund her reasonable defence costs and legal costs for the underlying Appeal; was required to pay her legal fees in connection with a related Action; and pay her legal fees in connection with a separate Appeal (“Declaratory Relief”). Kostic also sought directions regarding her selection of counsel and the processing of statements of account. Finally, Kostic opposed CIBC’s Application for an expedited Appeal.

Justice O’Ferrall stated that the bulk of the declaratory relief sought by Kostic was not “incidental to an appeal” as required by Rule 14.37 and, as a result, His Lordship dismissed many of Kostic’s Applications. O’Ferrall J.A. stated that the Court had jurisdiction to hear Kostic’s Applications for legal costs for responding to CIBC’s Application for a Stay of the Rooke Order and for an expedited Appeal, Kostic’s Application regarding Costs of the Appeal and Kostic’s opposition to an expedited Hearing of the Appeal.

After considering the tripartite test for a Stay, O’Ferrall J.A. granted CIBC a Stay as well as an expedited hearing of the Appeal. Justice O’Ferrall ordered that the Costs of the various Applications and responses would be in the cause.

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