UPDATE: United States v. Yemec: Don’t forget to ask for costs when you appeal

I’ve blogged about the foreign judgment enforcement saga in United States v. Yemec previously here, here and here.

Today, the Court of Appeal for Ontario in United States of America v. Yemec, 2010 ONCA 623 (Ont. C.A.) denied a motion brought by the appellants, The United States of America and United States Federal Trade Commission, to amend the court’s order dated June 8th, 2010 to address the issue of the costs granted by the motions judge. The court’s order, and the reasons for judgment of same date, did not address this issue.

The problem? The appellants forgot to address the costs issue in their written and oral submissions. The brief en banc opinion (per Moldaver, MacPherson, and Watt JJ.A.) concludes:
“[3] The appellants did not mention the motion judge’s costs award in their two Notices of Appeal. The appellants did not mention the motion judge’s costs award anywhere in their 40-page factum, including in paragraph 92 where they set out the relief they sought in the appeal. Nor did the appellants raise this issue in their oral argument.
[4] In short, it is too late for the appellants to raise the issue of the costs ordered by the motion judge. The proposed motion raises issues that are not straightforward and should, at a minimum, have been raised in the appeal documents, appeal factum, oral argument or in the parties’ earlier written cost submissions. In the circumstances, we believe it would be unfair and prejudicial to the respondents to allow the motion to go forward at this time. Accordingly, we decline to hear it on the merits.
[5] The motion is dismissed with costs to the respondents fixed at $5000 inclusive of disbursements and applicable taxes.”
Read the judgment here: http://www.ontariocourts.on.ca/decisions/2010/september/2010ONCA0623.htm

UPDATE: Never say never (again). The Court of Appeal for Ontario has reconsidered its previous dismissal of the appellant’s motion on costs. Here is the Court’s endorsement in United States of America v. Yemec, 2010 ONCA 845:

[1]               The appellants bring a motion to amend the court’s order dated 8 June 2010 to address the issue of the costs granted by the motion judge in his order dated 26 August 2009. The motion judge ordered costs in favour of the respondents fixed at $293,101 plus GST of $14,655.05.

[2]               In an endorsement dated 28 September 2008, we declined to hear the motion on the merits on the basis that the appellants did not properly advance this issue in their appeal documentation and submissions.

[3]               After receiving further correspondence, the court determined that it was mistaken in its belief that the appellants had not raised the issue of the motion judge’s costs order. Accordingly, by letter from the court’s Senior Legal Officer dated 10 November 2010, we invited the parties to make submissions on this issue. The appellants made written submissions on 18 November 2010, the respondents made a written response on 29 November 2010, and the appellants filed a written reply on 2 December 2010.

[4]               Having reviewed these submissions, we are of the view that the motion judge’s costs order in favour of the respondents should be reduced. The reality is that the appellants were successful on one major issue on the appeal and failed on the second major issue.

[5]               Having reviewed the motion judge’s costs reasons and this court’s reasons on the appeal, we would reduce the costs in favour of the respondents at the motion hearing to $100,000 inclusive of disbursements, plus all applicable taxes.

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