Acuna v. Hunze
The Court of Appeal held Greer J. erred in finding she was functus and in concluding there were no grounds to set aside the earlier order; the uncontradicted evidence showed an agreement or understanding about payment of costs and no further demand, therefore the earlier order should be set aside and the appellant...
Source-derived case information.
- Citation
- C33854
- Parties
- Appellant: Julio Acuna; Appellant: Venny Ana Acuna; Appellant: Bayardo Thomas Acuna; Appellant: Carmen Luisa Viteri; Appellant: Christina Penafiel Viteri; Appellant: Enrique Pio Herrera; Appellant: Isaac Erasmo Herrera; Appellant: Henry Kendal Herrera (minor by litigation guardian Enrique Pio Herrera); Appellant: Moira Vinyeth Herrera (minor by litigation guardian Enrique Pio Herrera); Respondent: Michael Lothar Hunze
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 28 June 2000
- Procedural Posture
- Civil / Court of Appeal Appeal From Greer J.'s Order and Motion Under Rule 37.14 to Set Aside Earlier Order
- Outcome
- Appeal allowed; order of Madam Justice Greer set aside.
- Legal Topics
- Functus Officio, Setting Aside Orders, Rule 37.14, Costs of Motion and Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julio Acuna
Appellant
Venny Ana Acuna
Appellant
Bayardo Thomas Acuna
Appellant
Carmen Luisa Viteri
Appellant
Christina Penafiel Viteri
Appellant
Enrique Pio Herrera
Appellant
Isaac Erasmo Herrera
Appellant
Henry Kendal Herrera (minor by litigation guardian Enrique Pio Herrera)
Appellant
Moira Vinyeth Herrera (minor by litigation guardian Enrique Pio Herrera)
Appellant
Michael Lothar Hunze
Respondent
Procedural Posture
Civil / Court of Appeal Appeal From Greer J.'s Order and Motion Under Rule 37.14 to Set Aside Earlier Order
Legal Issues
- 1 Whether the trial judge was functus officio and thus unable to revisit her earlier order
- 2 Whether there were grounds under Rule 37.14 to set aside the earlier order
- 3 Whether the appellant was entitled to immediate payment of costs
Ratio Decidendi
The Court of Appeal held Greer J. erred in finding she was functus and in concluding there were no grounds to set aside the earlier order; the uncontradicted evidence showed an agreement or understanding about payment of costs and no further demand, therefore the earlier order should be set aside and the appellant was entitled to immediate payment of costs for the motion and the appeal fixed at $5,000 each.
Court Disposition
Appeal allowed; order of Madam Justice Greer set aside.
Orders
- Earlier order of Madam Justice Greer set aside
- Order granted for the relief sought by the appellant on the motion to set aside
Full Case Text
Judgment text and source record
1 paragraphs
Acuna v. Hunze Collection Decisions of the Court of Appeal Date 2000-06-28 Docket numbers C33854 Judges McMurtry, Roy; Morden, John Wilson; Catzman, Marvin Adrian Subject Civil Decision Content DATE: 20000628 DOCKET: C33854 COURT OF APPEAL FOR ONTARIO RE: JULIO ACUNA, VENNY ANA ACUNA, BAYARDO THOMAS ACUNA, CARMEN LUISA VITERI, CHRISTINA PENAFIEL VITERI, ENRIQUE PIO HERRERA, ISAAC ERASMO HERRERA personally, HENRY KENDAL HERRERA a minor under the age of 18 years by his Litigation Guardia ENRIQUE PIO HERRERA, MOIRA VINYETH HERRERA, a minor under the age of 18 years by her Litigation Guardian, ENRIQUE PIO HERRERA (Plaintiffs/Appellants in Appeal) –and– MICHAEL LOTHAR HUNZE (Defendant/Respondent in Appeal) BEFORE: McMURTRY C.J.O., MORDEN and CATZMAN JJ.A. COUNSEL: Philip M. Epstein, Q.C., for the appellant Todd J. McCarthy, for the respondent HEARD: June 26, 2000 On appeal from the order of Greer J. dated February 17, 2000. ENDORSEMENT [1] Madam Justice Greer erred in holding that she was functus with respect to the motion under rule 37.14 to set aside her earlier order. She further erred in holding that there were no grounds on which her earlier order should be set aside. [2] The uncontradicted evidence before her disclosed that: Mr. Elkin had suggested that the outstanding costs be paid out of the appellant’s recovery at the conclusion of trial but that, if Mr. Dow insisted on payment of the costs forthwith, Mr. Elkin’s firm would pay them; Mr. Dow advised Mr. Elkin that he would seek instructions and would get back to Mr. Elkin; and following that conversation, Mr. Elkin never received any further demand for payment of costs nor was there any further discussion regarding costs. On that state of the evidence, the order under appeal ought not to have been made. [3] The appeal is allowed, the order of Madam Justice Greer is set aside and in its place an order will go for the relief sought by the appellant on the motion. The appellant is entitled to payment forthwith of her costs of the motion and of this appeal, each of which is fixed, in accordance with the figures agreed by counsel, in the sum of $5,000. Signed: “R.R. McMurtry C.J.O.” “J.W. Morden J.A.” “M.A. Catzman J.A.”