Simon's Megalomaniacal Legal Resources

Fairness - Civil Litigation

. NCS Multistage Inc. v. Kobold Corporation [costs]

In NCS Multistage Inc. v. Kobold Corporation (Fed CA, 2025) the Federal Court of Appeal allowed a patent appeal, here brought against a successful patent infringement counterclaim.

Here the court allows an appeal from an extensive trial costs award [$1.8 million]:

[83] There is no doubt that the Federal Court has broad discretion in awarding costs: Rule 400(1); Nova Chemicals Corporation v. Dow Chemical Company, 2017 FCA 25 at para. 10 (Nova Chemicals). In addition, lump sum costs awards are permissible and commonly used by the courts in both simple and complex proceedings: Nova Chemicals at para. 11. The jurisprudence generally supports lump sum awards between 25% and 50% of actual fees depending on the circumstances of the case (Nova Chemicals at para. 17), with awards of between 25% and 33% as the norm: Shire at para. 22.

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[89] Appeal courts properly defer to the trial judge who has "“wide latitude in assessing what is an appropriate lump sum”" (Shire at paras. 17-18) but a trial judge’s broad discretion in awarding costs must be exercised in a procedurally fair manner and the award must be supported by evidence and reasons sufficient to permit appellate review. In Exeter, the question before the Court was whether the absence of a request for costs on an interlocutory motion by the successful party precluded an award of costs. The Court’s answer that a court could not award costs when not requested was based squarely on the principles of procedural fairness (Exeter at para. 12):

To award costs in these circumstances would be a breach of the duty of fairness because it would subject the party against whom they are awarded to a liability when the party had had no notice or an opportunity to respond: see, for example, Nova Scotia (Minister of Community Services) v. Elliott (Guardian ad litem of) (1995), 141 N.S.R. (2d) 346 (N.S.S.C.) at para. 5.

(See also Chen v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 170 at para. 60.)

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[91] I find that NCS was denied procedural fairness when the Federal Court awarded costs in form and amount that had not been requested. Effectively, NCS was subjected to a liability of which it had no notice and to which it had no opportunity to respond. Once the Federal Court determined that Kobold’s requested lump sum inadequately reflected the nature of the litigation, notice should have been provided to the parties requesting further costs submissions based on legal fees incurred, together with evidence of actual legal fees.

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[94] I now address NCS’s more significant and related concern. NCS submits that the Federal Court erred in law in awarding sizeable lump sum costs without evidence, citing this Court’s decision in Nova Chemicals. NCS argues the Federal Court’s reliance on Kobold’s one statement that its fees totalled over four million dollars was procedurally unfair. Had NCS been afforded the opportunity to respond, it could have tested the fee estimate and provided submissions regarding the absence of a proper evidentiary record.

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[96] It is well established that a lump sum costs award must be supported by sufficient evidence to ensure predictability and fairness to the other party: Nova Chemicals at para. 18; Shire at para. 24. NCS and Kobold acknowledge the need for evidence but differ on whether Kobold provided the Federal Court with any or sufficient evidence of the nature and extent of its legal fees. NCS submits that the provision of a bill of costs and the court docket is not, without more, evidence of actual fees incurred. In response, Kobold argues that there is no requirement for counsel’s accounts or for an affidavit in support of costs, and that the Federal Court and this Court regularly accept submissions of counsel as to actual legal fees when determining a lump sum award.

[97] Justice Rennie set out a framework for assessing the nature of the evidence required to properly support a lump sum award in Nova Chemicals:

[18] When a party seeks a lump sum award based on a percentage of actual legal fees above the amounts provided for in the Tariff, as a matter of good practice the party should provide both a Bill of Costs and evidence demonstrating the fees actually incurred. As well, a sufficient description of the services provided in exchange for the fees should be given to establish that it is appropriate that the party be compensated for those services.

[98] To place Justice Rennie’s framework in its factual context, Dow Chemical had sought costs representing 30% of its legal fees, or costs based on Column V of Tariff B in the alternative. It provided the Federal Court "“with both a Bill of Costs, as well as a summary of Dow’s actual solicitor-client fees”": Nova Chemicals at para. 22.

[99] There is no rule that requires a party to provide its accounts and dockets in order to be entitled to a lump sum costs award. Courts have accepted bills of costs as support for a lump sum award based on a percentage of fees incurred in circumstances where a party has requested such an award. In those cases, the trial judge had before them the party’s written and oral submissions regarding fees incurred and, very often, additional evidence of total fees incurred as in Nova Chemicals. There are many cases in which the requesting party filed an affidavit in support of its request for a lump sum costs award (as did NCS in this case), itemized amounts claimed, provided billable rates and/or gave a summary explanation of its legal costs.

[100] The Federal Court had Kobold’s statement that its legal fees totalled over $4,000,000, Kobold’s bill of costs, and the court docket. Kobold provided no affidavit, explanation or summary of its actual legal fees or its accounts and its reference to total fees was made solely in support of its request for costs at the high end of Column V of the Tariff. There was no oral argument to inform the Federal Court regarding Kobold’s legal fees and provide an opportunity for the Federal Court, and NCS, to test those fees. The Federal Court had no information on which it could assess Kobold’s fee estimate against the bill of costs which summarizes the steps of the proceeding but does not explain the fees incurred. Similarly, the court docket is extensive and demonstrates the complexity of the litigation but provides very limited support for Kobold’s stated legal fees.

[101] In these circumstances, I find that there was insufficient evidence of Kobold’s actual legal fees before the Federal Court to enable it to determine whether the approximate $4 million of legal fees claimed was reasonable in the context of the proceeding.

[102] The absence of evidence in support of Kobold’s legal fees underlines the fairness issues with the process for costs submissions in this proceeding and the Federal Court’s departure from the resulting submissions. Kobold had no opportunity to support its quantum of legal fees and NCS had no opportunity to challenge the lump sum award and test Kobold’s fees.

[103] For these reasons, I conclude that the Federal Court made a reversible error in awarding lump sum costs to Kobold and Promac of $1,800,000.

. Fang v. Yin

In Fang v. Yin (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's appeal from a plaintiff-successful summary judgment motion.

Here the court assessed an appellate civil litigation argument styled in "procedural fairness and natural justice":

C. The appellant was not denied procedural fairness

[12] First, the appellant claims a lack of fairness because the motion judge found that the appellant had committed what he describes as a “criminal offence” when she found that he assaulted the respondent. The appellant points to the fact that this finding is set out at the beginning of the motion judge’s reasons and argues that it therefore tainted her credibility findings. This submission is baseless.

[13] The respondent’s statement of claim pleaded that the appellant had assaulted her. It was an issue that was squarely before the motion judge and one she needed to address in deciding whether to grant the injunctive relief requested by the respondent. Because she could not decide this allegation based on the written record, the motion judge held a mini-trial and heard viva voce evidence from both parties. After a thorough review of the evidence, she found that the appellant did assault the respondent and that injunctive relief was appropriate. This was a finding she was entitled to make. The fact that she chose to mention it in the overview of her judgment does not support a finding that she prejudged the matter or otherwise treated the appellant unfairly.

. Grovum v. Kouznetsov [case conference]

In Grovum v. Kouznetsov (Ont Div Ct, 2025) the Ontario Divisional Court considered on a Divisional Court appeal jurisdiction at a case conference, here from the making of a "final order on contested issues during a case conference".

The court considers a civil litigation 'fairness' argument, here alleging an essential lack of notice over the range of issues and orders dealt in a case conference:

2. The appellants were not denied procedural fairness.

[32] The appellants argue that they believed the purpose of the conference was solely to explain the outstanding issues and to schedule a hearing on the merits, and that they were not permitted to file affidavits or factums. They also contend that their counsel was surprised when the application judge used the case conference to adjudicate contested issues. I would not give effect to these submissions.

[33] The receiver requested the case conference on behalf of the appellants, citing as its purpose "inter alia, interpretation of his previous orders/endorsements." The appellants did not raise any concern or disagreement with the court or the respondents regarding the stated purpose of the conference.

[34] In response to the request for a case conference, the application judge stated that “to make [the case conference] effective, I will require a case conference memo from each party setting out what they want and why they should get it.” It should have been clear to the appellants that the parties had the opportunity to request orders at the case conference. Furthermore, the application judge directed that the parties’ briefs be limited to five pages, “plus any necessary attachments.” He did not specify a page limit for attachments, and nothing prevented the appellants from filing an affidavit if they wished.

[35] The appellants were afforded ample opportunity to present their case through memoranda and attachments, and their failure to avail themselves of this opportunity does not constitute a denial of procedural fairness. They were adequately informed of the case conference’s purpose, of the orders the respondents’ sought, and provided with the means to present their case.

. Smith v. Fire Team K-9’s Inc

In Smith v. Fire Team K-9’s Inc (Ont Divisional Ct, 2025) the Divisional Court dismissed an appeal, here from a motion judge's order that a settlement regarding ownership of a dog should be enforced.

Here the court cites 'procedural fairness' in a civil litigation context:

[3] The Appellants started litigation regarding the ownership of Briggs in 2022 under the Simplified Procedure provided in Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

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Issue #2: Procedural fairness and evidence from former counsel

[20] The Appellants submit the motions judge breached procedural fairness by requiring their former counsel to testify. They say this deprived them of their choice of counsel. They also submit it forced them to abandon their argument that the Agreement was entered into under duress because they did not want to waive solicitor client privilege. I reject both of these arguments.

[21] The standard of review for allegations of breach of procedural fairness is correctness: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 74.

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[24] The Appellants made a strategic decision as to how to present their evidence. Having admitted any stress they experienced did not vitiate the Agreement, and having failed to raise any allegation of procedural unfairness before the motion judge, this ground of appeal fails.

. Foglia v. Grid Link Corp.

In Foglia v. Grid Link Corp. (Div Court, 2024) the Ontario Divisional Court dismissed an appeal, this from an interlocutory OBCA order that required the appellant to purchase the respondent's interest in a corporation.

The court considered the adequacy of notice of allegations in the proceedings, here in a civil judicial proceeding:

[16] In Singh v. Trump, 2016 ONCA 747, at paras. 148 to 149, in the context of a motion for judgment, the court said the following about the requirement that parties have notice of the matters that will be at issue on a hearing:

However, a motion judge may not grant or dismiss a claim on a motion for summary judgment that is not within the scope of the motion before him or her. Doing so would deny procedural fairness and natural justice.

A fair hearing requires that a party have notice of the matters that will be at issue at the hearing and of how that party may be affected by the hearing’s outcome. [Citation omitted.]

[17] In the present case, the appellants argue that the only issue before the motion judge was whether the application should be treated as an action pursuant to rule 38.10(2) of the Rules of Civil Procedure. They say that they had no notice that the issue of whether a sale of Foglia’s shares to them would be considered, and that as a result, they were denied procedural fairness.

[18] I agree that in the circumstances of this case, it would have been better if the motion judge, after coming to a preliminary conclusion that an order for sale of the shares was required to move the matter forward, had given the parties a further opportunity to argue that point. However, two factors attenuate concerns about procedural fairness.

[19] First, although the appellants did not have notice that the issue of whether Foglia’s shares should be sold to them would be dealt with on the motion, they did have notice of the argument that formed the basis of the motion judge’s decision. Second, the appellants have not shown any prejudice or substantive unfairness to have resulted from not being given a further opportunity to argue the issue.

. Earle v. Toro Roofing Inc.

In Earle v. Toro Roofing Inc. (Div Court, 2024) the Ontario Divisional Court dismissed an appeal from the Small Claims Court, here in a renovation dispute.

Here the court considers 'procedural fairness' in a civil trial context:

Was Ms. Earle denied procedural fairness?

[6] Ms. Earle submits she was denied procedural fairness on many grounds. These include: (1) that she was not given the opportunity to re-examine herself after she was cross-examined by the respondents; (2) that she should have been accommodated with an in-person trial with real-time captioning to assist with her hearing disability; and (3) that the deputy judge did not clearly explain that she was required to enter documents she wanted to rely on as exhibits.

[7] I conclude the trial was not procedurally unfair. There is no dispute that Ms. Earle did not re-examine herself, but determinations of procedural fairness are context specific. The confusion about her re-examination arose after a decision was made to change the order of witnesses. The third day of trial, May 3, 2023, was supposed to start with the cross-examination of Ms. Earle. Because she was recovering from a cold and was having difficulty speaking, the deputy judge accepted a suggestion from counsel for the respondents that the parties proceed with the examination of his expert, who was supposed to proceed later in the day. After it became clear Ms. Earle was able to speak to cross-examine the expert, the trial proceeded to her cross-examination that afternoon. At the end of the day, counsel for the respondents advised that he wished to review two more documents with Ms. Earle on cross-examination when the trial resumed.

[8] The next trial date was over three months later. Counsel for the respondents had in the meantime decided not to ask any further questions on cross-examination and had his own witness ready to testify. The deputy judge did not specifically recall that there was no formal conclusion to Ms. Earle’s cross-examination and neither party raised it. Ms. Earle did not ask to re-examine herself at that time.

[9] Ms. Earle did attempt to raise the issue with the deputy judge after the evidence of all the witnesses was completed and the deputy judge was asking the parties about the time needed for closing submissions. Ms. Earle was having difficulty expressing clearly what she was requesting, and it appears the deputy judge did not understand. Ms. Earle asked for the opportunity for “rebuttal.” The deputy judge understood it as a request to lead rebuttal evidence, which she denied.

[10] I appreciate that Ms. Earle ultimately did not have the opportunity to re-examine herself. This was not a breach of procedural fairness in all the circumstances. The trial was scheduled for one day but took four days. Ms. Earle’s evidence took 2.5 of those days. She had ample opportunity to present her case. She did not raise any complaint about an inability to lead important evidence in closing submissions. Re-examination is a narrow opportunity to respond to new issues raised in cross-examination that could not have been anticipated. Ms. Earle has not described any re-examination evidence she wanted to introduce that would have been admissible and important. This ground of appeal is dismissed.

[11] Ms. Earle also submits the trial was unfair in that she was not provided with an in-person trial with real-time captioning. This was not a breach of procedural fairness nor a failure of the duty to accommodate Ms. Earle’s disability. The first day of the trial was conducted in-person, without any real-time captioning. Ms. Earle did not raise any complaint then. When the parties returned for the second day of trial, she requested real-time captioning. The deputy judge advised the technology was not available in the courthouse that day and ordered the next trial day to proceed by Zoom so real time captioning could be provided. There is no transcript from that discussion but nothing in the deputy judge’s endorsement suggests the move to Zoom was against the plaintiff’s wishes. When the next day of trial was started on Zoom, Ms. Earle was provided with closed captioning. She did not raise any complaint or concern with the process, nor has she pointed this court to any situations where she had difficulty understanding during the trial. A conversion to Zoom with closed captioning was a reasonable accommodation in the circumstances.

[12] I also reject Ms. Earle’s submission that the deputy judge breached procedural fairness by not clearly explaining she was required to enter any documents she wanted to rely on into evidence as an exhibit. In my view, the deputy judge did explain this. In response to a question from Ms. Earle, the deputy judge stated that Ms. Earle should not read any documents into the record because the deputy judge could read them on her own. But she also advised Ms. Earle she should refer to the document and explain why she had included it. Ms. Earle appeared to understand this explanation because she said she would “go through what [she had] in the binder.” The deputy judge then gave Ms. Earle a break to organize her remaining testimony. The deputy judge explained that Ms. Earle would be required to point to documents she relied on and there was no breach of procedural fairness.

. Rebello v. Ontario (Community Safety and Correctional Services)

In Rebello v. Ontario (Community Safety and Correctional Services) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an earlier dismissal "of her lawsuit alleging that the Ontario Provincial Police breached common law and statutory duties they owed to her by failing to meaningfully investigate complaints".

Here the court, while considering an appellant-raised 'procedural fairness' argument in a civil Charter and tort context, refers to the doctrine as one of 'natural justice':

[6] Third, the appellant contends that the motion judge denied her procedural fairness by ordering that the parties must attend the motion hearing in person and then by holding the hearing when she failed to attend. As held in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, at para. 21, the content of procedural fairness is to be decided in the specific context of each case. In the context of this case, we do not agree that the motion judge’s conduct of the proceeding resulted in any unfairness.

....

[14] We conclude that the motion judge exercised his discretion reasonably, and that the appellant’s allegation of a breach of natural justice has no merit.