Supreme Court of Canada
Clarke v. Millar,  S.C.R. 584
John Wesley Clarke (Plaintiff) Appellant;
John D. Millar and Douglas Glen Creba (Defendants) Respondents.
1970: February 6, 9; 1970: March 2.
Present: Cartwright C.J. and Martland, Hall, Spence and Pigeon JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Practice—Taxation of costs—Objection raised—Appeal from taxing officer’s decision—Order of High Court Judge interlocutory—No appeal therefrom without leave—The Judicature Act, R.S.O. 1960, c. 197, s. 25—R. 499 (Ont.).
By the judgment of the trial judge, an action brought by the appellant against the respondents and the Attorney-General of Ontario was dismissed as against the Attorney‑General without costs and as against the respondents with costs and an appeal from that judgment was dismissed with costs payable to the respondents.
Before the taxing officer the appellant raised the objection that the respondents were under no legal obligation to pay costs to the solicitors who conducted the defence of the action and the appeal for them and consequently could not recover costs from the appellant. This objection was rejected by the taxing officer who, on the evidence, found that there was no agreement between the respondents or either of them and the solicitors or anyone else
that the respondents would not be liable to the solicitors for costs. An appeal from this decision was dismissed by a judge of the High Court. Subsequently, an appeal to the Court of Appeal was quashed on the ground that that Court was without jurisdiction by reason of the fact that the order in appeal was interlocutory and that no leave to appeal had been obtained in accordance with the provisions of s. 25 of The Judicature Act, R.S.O. 1960, c. 197, and R. 499 (Ont.). The appellant then appealed to this Court and the respondents moved to quash the appeal. The motion to quash was dismissed.
Held: The appeal should be dismissed.
As held in Rickwood et al. v. Aylmer et al,  O.R. 470, the order of a judge of the High Court pronounced in review of a taxation of party-and-party costs is an interlocutory order, and therefore, under the applicable statutory provisions, is not appealable to the Court of Appeal without leave.
As to the merits of the appeal, the findings of fact made by the taxing officer were supported by the evidence and on the basis of those findings the decision was right in law.
APPEAL from an order of the Court of Appeal for Ontario, quashing an appeal from an order of Lieff J., dismissing an appeal from a decision of a Taxing Officer. Appeal dismissed.
John Sopinka, for the plaintiff, appellant.
P.J. Brunner, for the defendants, respondents.
The judgment of the Court was delivered by
THE CHIEF JUSTICE—This is an appeal from an Order of the Court of Appeal for Ontario, made on April 17, 1968, quashing an appeal from an Order of Lieff: J., made on March 1, 1968, dismissing an appeal from a decision of the Taxing Officer W.C. McBride, dated April 26, 1967.
The appellant brought an action against the respondents and the Attorney-General of Ontario. By judgment of Grant J. pronounced on June 9, 1964, following a lengthy trial, this action was dismissed as against the Attorney-General without costs and as against the respondents with costs and an appeal from that judg-
ment was dismissed with costs payable to the respondents by an Order of the Court of Appeal dated November 17, 1965. The respondents’ total party and party costs have been taxed at the sum of $29,230.50.
Before the Taxing Officer the appellant raised the objection that the respondents were under no legal obligation to pay costs to the solicitors who conducted the defence of the action and the appeal for them and consequently could not recover costs from the appellant. An Order for production of documents was made and the Taxing Officer heard oral testimony. In full and careful reasons he examined the evidence and the relevant authorities and reached the following conclusion:
It is clear on the evidence, and I so find, that there is no agreement binding on the solicitors between Millar and Creba or either of them and the solicitors or anyone else to the effect that they would not be liable for their solicitors’ costs.
From this decision the appellant appealed. Lieff J. dismissed the appeal, his reasons being as follows:
For the reasons delivered by the Master, the appeal is dismissed with costs to the Respondents.
The appellant appealed to the Court of Appeal. The respondents moved to quash the appeal on the ground that the Order of Lieff J. was interlocutory and that, under the terms of s. 25 of The Judicature Act, R.S.O. 1960, c. 197 and Rule 499 of the Consolidated Rules of Practice (Ontario), no appeal lay to the Court of Appeal except by leave of a judge other than the judge appealed from and no leave had been obtained. The Court of Appeal gave effect to this submission and quashed the appeal.
The appellant appealed to this Court and the respondents moved to quash the appeal. On February 17, 1969, the motion to quash was dismissed the Court being unanimously of opinion that the Order of the Court of Appeal was a “final judgment” as defined in s. 2(b) of the Supreme Court Act, that the amount in controversy in the appeal exceeded ten thousand dollars and consequently under s. 36(a) an appeal to this Court lay as of right.
I have reached the conclusion that the Court of Appeal was right in holding that, under the applicable Ontario statutory provisions, the Order of Lieff J. was interlocutory. I find it necessary to refer to only one of the numerous authorities discussed on the argument before us. In Rickwood et al. v. Aylmer et al., Aylesworth J.A., who gave the unanimous reasons of the Court of Appeal, made a careful examination of the earlier decisions and the amendments made in the statute and the Rules of Practice and having done so said at p. 479:
...I conclude that we are now bound to hold, and I do hold, that the order of a Judge of the High Court pronounced in review of a taxation of party-and-party costs is an interlocutory order, and therefore not appealable to this Court without leave. This I take to be the inescapable result of the changes in the statute and in the Rules of Practice and of the decisions in Leonard et al. v. Burrows, Hendrickson v. Kallio and the subsequent authorities, to all of which reference has already been made.
It would require compelling reasons to enable us to depart from a decision of the highest Court in the province on a matter of practice and procedure which has stood for fifteen years; but, quite apart from this consideration, I find the reasoning of Aylesworth J.A. convincing and agree with his conclusion.
It may appear anomalous that a decision which is final as regards an appeal to this Court should be interlocutory under the Ontario practice as regards an appeal to the Court of Appeal, but this is accounted for by the difference in wording of the statutory provisions which define the jurisdiction of the two Courts.
While what is said above is sufficient to dispose of the appeal I wish to add a word about the merits which were fully argued. No question was raised before us as to the amount at which the costs were taxed, the only contention of the appellant being that no costs were recoverable from him. The findings of fact made by the learned Taxing Officer, which are summarized in the passage from his reasons quoted above and were concurred in by Lieff J., are supported by the evidence. On the basis of those findings the
decision is right in law and I would be willing, as did Lieff J., to simply adopt the reasons of the Taxing Officer. The result of this appeal would therefore have been the same even if the appellant had obtained leave to appeal to the Court of Appeal from the Order of Lieff J.
I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the plaintiff, appellant: Fasken & Calvin, Toronto.
Solicitors for the defendants, respondents: Kimber, Dubin, Morphy & Brunner, Toronto.
  O.R. 470.