1.3: General authority of the Court to provide remedies
1.4: Procedural orders
10.15: Retainer agreement confidentiality
10.44: Appeal to judge

Case Summary

The Appellant (“Ondrik”) appealed a Review Officer’s Assessment of the Bill of Costs arising out of a foreclosure Action. Ondrik served Royal Bank of Canada (“RBC”) with the record of proceedings pursuant to Rule 10.44(4), but did not file and serve any further written argument. RBC applied to the Court for advice and direction. The Notice of Appeal stated that Ondrik would be filing written argument in support of the Appeal. RBC argued that by not filing written argument, Ondrik effectively reversed the onus onto RBC to file written argument first. Ondrik cross-applied to have the Appeal adjourned to special chambers, with the corresponding filing and submission deadlines. One of the grounds of Appeal raised by Ondrik was that an award of Solicitor-Client Costs would be a windfall to RBC, as opposed to true indemnity: RBC’s counsel confirmed that RBC had not yet been billed in the matter, and RBC had not disclosed the retainer agreement. RBC argued that the retainer agreement was confidential pursuant to Rule 10.15 and the Review Officer’s determination was only an evaluation of whether the fees were reasonable. RBC argued further that the Bill of Costs was reasonable because it accorded with the services performed under the appropriate column of Schedule C for the foreclosure Action.

Lee J. confirmed that the Court’s powers under Rules 1.3 and 1.4 to remedy any procedural problems applied to Rule 10.44(4), and that the Court could order a matter to be heard in Special Chambers with appropriate written submissions. Given the grounds of Appeal raised by Ondrik, Justice Lee concluded that the matter should be dealt with in Special Chambers.

Justice Lee noted that, with respect to written arguments, Rule 10.44 requires an Appellant to file and serve Form 46 on the Respondent, but the form itself does not require the Appellant to set out its grounds of Appeal. Lee J. observed that Rules 10.44(4) and 10.44(5) appear to have some gaps because Form 46 does not require written argument or setting out the grounds of Appeal. Ondrik had complied with all but Rule 10.44(4)(c) which required the filing and service of any further written argument. Lee J. stated that Rule 10.44(5) requires a Respondent to file and serve written argument within 10 days after receiving service of Form 46. Justice Lee directed the matter to be heard in Special Chambers in order to resolve the ambiguity in the Rule.

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