Court of Appeal for Ontario
Before: Rosenberg, Feldman, Simmons JJ.A.
Between:
Peter Grant and Grant Forest Products Inc.
Respondents (Plaintiffs)
and
Torstar Corporation, Toronto Star Newspapers Limited, Bill Schiller, John Honderich and Mary Deanne Shears
Appellants (Defendants)
Counsel:
Paul B. Schabas, D. Simon Heeney and D. Erin Hoult, for the appellants
Peter A. Downard and Catherine M. Wiley, for the respondents
Brian Rogers and Peter Jacobsen, for the Media Coalition
Heard: March 31, 2008 Reasons Released: November 28, 2008
COSTS ENDORSEMENT RE PROPOSED MEDIA COALITION INTERVENTION
1The respondents seek substantial indemnity costs in the amount of $18,939.18 from the media coalition in respect of its motion before the Chief Justice to intervene on the appeal. The media coalition was granted leave to intervene but on conditions including the following:
(1) the intervener will pay the respondents’ costs incurred as a result of the late intervention in any event of the appeal;
(2) the intervener will not seek costs on the appeal but may have costs awarded against it;
(3) the costs of the motion will be costs in the appeal.
2Because of its potential exposure to costs on the appeal following this order, the media coalition elected not to file a factum or participate in the appeal.
3The respondents now seek the full costs of the motion. The media coalition opposes any order as to costs.
4Although the order of the Chief Justice did not contemplate that the media coalition would withdraw from participating in the appeal and did not provide specifically for that eventuality, we must give effect to the order, as no party sought to amend it in light of the change of circumstances.
5As the intervener did not participate in the appeal, there was no relevant costs order on the appeal in respect of the intervener. The costs as between the appellants and respondents were awarded to the appellants. Therefore there is no basis on which the full costs of the motion can be ordered to be paid to the respondents by the media coalition.
6However, in our view, some portion of the costs incurred by the respondents on the motion may fairly be attributable to the late intervention by the media coalition. We would fix those in the amount of $3,500 inclusive of disbursements and G.S.T.
Signed: "M. Rosenberg J.A."
"K. Feldman J.A."
"Janet Simmons J.A."