DIVISIONAL COURT FILE NO.: 206/04

DATE: 20040615

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MARY ARHONTO SEARS

Applicant

• and -

MARIE SEARS, PAUL SEARS, ATHENA MALLIOUX and THE CANADIAN IMPERIAL BANK OF COMMERCE MORTGAGES INC.

Respondents

Joseph Markin, for the Applicant, Mary Arhonto Sears

Christos Papadopoulos, for the Respondent, Marie Sears et al.

HEARD at Toronto: April 23, 2004.

O’Driscoll J.:

1When asked if he appeared for anyone other than Marie Sears, Mr. Papadopoulos said that it was agreed amongst the Respondents that he alone would appear but “he did not feel comfortable saying that he appeared for anyone other than Marie Sears”. I conclude that, because of the agreement, he appears for all Respondents.

I. Nature of Proceedings

2The Applicant, Mary A. Sears, brings an application for leave to appeal to the Divisional Court under the provisions of s. 19 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 and Rule 62.02(4)(a) and (b) of the Rules of Civil Procedure from the order of Pepall J., dated February 20, 2004 and her further order of March 12, 2004. The impugned orders decline to enforce the August 1, 2003 order of the Court of Appeal for Ontario, which concludes: “the appellant [Mary Arhonto Sears] is entitled to her costs on appeal and below. Costs of the appeal are fixed at $6,000.00”.

3When the Respondents did not pay the $6,000.00 costs ordered to be paid by the Court of Appeal for Ontario, counsel for Mary A. Sears brought a motion returnable on February 20, 2004 for an order striking out the Respondents’ pleading in the trial of an issue also ordered on August 1, 2003 by the Court of Appeal for Ontario (Catzman, Feldman and Gillese JJ.A.).

4In the endorsement of February 20, 2004, the Motions Court Judge said in part:

Absent a statement that the costs are payable forthwith or within some other time – e.g. “30 days”, it seems to me that the costs are payable at the conclusion of the litigation: Wine v. Fisher (1998), 1998 5213 (ON CA), 42 O.R. (3d) 153(6). Accordingly, the pleadings of the CIBC should not be struck.

5On February 23, 2004, counsel for Mary A. Sears wrote a letter to J.H. Kromkamp, Senior Legal Officer, Court of Appeal for Ontario, and asked for Mr. Kromkamp’s assistance in bringing a motion to that Court under Rule 59.06(1) of the Rules of Civil Procedure.

6On February 25, 2004, Mr. J.H. Kromkamp replied and stated, in part:

The panel has considered the material relating to this question and does not see the necessity to entertain a further motion.

In circumstances where the court intends that the payment of costs be deferred, it makes such express provisions in its endorsement. In other cases, including the present case, it is the intention of the court that the costs be paid forthwith.

7On February 25, 2004, counsel for the Applicant forwarded to Pepall J. a copy of the letter of John Kromkamp, dated February 25, 2004, and said:

Subsequent to the motion heard by you on Friday February 20, 2004 and the receipt of your Endorsement, I immediately contacted the Court of Appeal to vary their order pursuant to Rule 59.06(1). A copy of the request is enclosed with enclosures. I subsequently received a response from the Court of Appeal stating that all costs Order [sic] of the Court of Appeal including this costs order are payable forthwith unless endorsed otherwise. I enclose copy of the court’s clarification which has also been sent to all counsel. I would appreciate your Honour’s considering this clarification in arriving at a final determination on the motion before you.

8On March 12, 2004, Pepall J. released a further endorsement which stated:

Even though my order has not been issued and entered, I am of the view that I have already disposed of this motion. I have received costs submissions from counsel for CIBC Mortgages Inc. Unless the parties agree to some other procedure, I would propose to fix the costs of the motion before me. Accordingly, I look forward to receipt of submissions on costs from the remaining parties.

II. Conclusions

9Counsel for the Applicant submits that the letter of John Kromkamp, dated February 25, 2004, is tantamount to a “conflicting decision”, as envisaged by Rule 62.02(4), to the decision set out in the endorsement of Pepall J.

10Pepall J. relied on the decision of Wine v. Fisher (1998), 42 O.R. (3d) 154, 156, per Osborne J.A.: “Absent language to the contrary, fixed costs of interlocutory proceedings should not be payable forthwith”.

11Wine v. Fisher appears to be in conflict with the letter from the Court of Appeal for Ontario, dated February 25, 2004 (supra).

12Moreover, the motion before Pepall J. was for an order to strike the Respondents’ pleadings for their failure to pay the costs ordered by the Court of Appeal for Ontario. In my view, there was nothing interlocutory about the August 1, 2003 order of the Court of Appeal.

13In the peculiar circumstances of this case, in my view, the Applicant has fulfilled the requirements of both branches of Rule 62.02(4)(a) and both branches of Rule 62.02(4)(b). Leave to appeal is granted.

III. Costs

14Costs of the leave to appeal application are left to the panel of the Divisional Court hearing the appeal.

O’Driscoll J.