COURT FILE NO.: 512/04

DATE: 20041001

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

PLAZA PONTIAC BUICK LIMITED

Plaintiff

• and -

ANJANI DIAL-HOWIE

Defendant

Carol A. Bargman, for the Plaintiff

James Jagtoo, for the Defendant

HEARD: October 1, 2004

BENOTTO S. J.: (Orally)

1This is a motion by Plaza for leave to appeal the cost decision of Jarvis J. It is argued that Jarvis J. was not incorrect in awarding costs but simply the amount of $10,000.00 awarded was too high and leave should be granted against the amount of costs.

2There are two actions involved here. The plaintiff is a defendant in the first action and the plaintiff in the other.

3The second action was started by Plaza when the first action was at the discovery stage. Dial-Howie moved to dismiss that action as another proceeding was pending between the same parties. In addition, he alleged that there were insufficient allegations contained in the claim which was deficient.

4Mr. Justice Jarvis consolidated the two actions and ordered Plaza to re-draft its pleadings by amending the statement of defence to include a counterclaim.

5I do not understand why counsel started the second action in the first place. It would have made more sense in my view to seek leave to amend the defence to include a counterclaim. However, it appears from the record that I have viewed as a whole that if there is an easy way to do something and a complicated way to do something, Plaza chose the complicated. This, in my view, was implicit in the decision given on the motion before Jarvis J.

6One of the grounds for this motion is that Jarvis J. did not adequately consider an offer to settle contained in a letter written by Plaza’s lawyer very shortly after the action was started. That offer was not filed in the motion records; it is not before me. I have given time to counsel to locate it in the material without apparent success. I therefore do not consider that offer to settle. Even so, an order for costs is one in which the judge has extraordinarily wide discretion. The moving party here has not established that that discretion was improperly exercised. There are no conflicting decisions, in my view, that apply and the matter is not of general or public importance.

7On the contrary, I must add, having reviewed the entire file and listened to counsel that I agree with Jarvis J.’s order and believe that it was, in all of the circumstances, entirely appropriate. Therefore, the motion is dismissed.

8Costs of this motion are fixed at $8,500.00, payable forthwith.

BENOTTO S.J.

Date of Reasons for Judgment: October 1, 2004

Date of Release: October 5, 2004

COURT FILE NO.: 512/04

DATE: 20041001

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT