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In Continental Casualty Co. v. Symons, 2016 ONSC 4750, Continental Casualty Co. moved to lift a stay of execution and to appoint an investigative receiver. After hearing, that motion was granted, and Justice Morgan thereafter delivered his Endorsement to the parties. Continental Casualty Co. then prepared a formal Order, (which was necessary to allow the investigative receiver to commence work), but the Symons defendants refused to agree to the form of same, such that further written submissions were required.

On review of the Symons submissions, the Court concluded that their objections were to the substance (outcome), rather than the form of the Order. The Court then clarified the options available to a party who opposes the substance of an Order:

  1. Initially, where a party feels there were one or more factual errors, they can move under Rule 59.06 for a correction;
  2. Secondly, where a party feels there were one or more legal errors, they have the option to appeal;
  3. Thirdly, where a party feels that a miscarriage of justice would occur if the ruling remained in place, they can move for reconsideration. Note however that the Court cited to the Schmuch v. Reynolds-Schmuck, 2000 CanLII 22323 (ON SC) case, which notes that for the Court to grant reconsideration, a party would have to establish that the integrity of the litigation process is at risk, that there is some principle of justice at stake that would override the value of finality in litigation, or that some miscarriage of justice would occur if such a reconsideration did not take place. As this is admittedly a high bar, in most instances, an appeal is often the most readily available potential remedy where a party is unhappy with the outcome of a motion.

The Continental Casualty Co. case serves as a further reminder that counsel have a professional obligation to the Court to approve an Order to which there is no valid objection, and that such obligation continues even after the lawyer ceases to act for a party.[1][2] Where counsel fails to do this, they put themselves at risk of being held personally responsible for costs pursuant to Rule 57.07, which affords the Court jurisdiction to impose costs upon a lawyer who has run up the costs of litigation.

For more information on this case or counsel’s professional obligation, please contact Michael Lesage at 647-495-8995. Concentrating in business and commercial litigation, the Toronto and Hamilton law offices of Michael’s Law Firm are ready to get you the results that matter.

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