SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Mary Arhonto Sears, Appellant;
-and-
Marie Sears, et al., Respondents
HEARD: March 8, 2005
BEFORE: Lane, Howden and Molloy JJ.
COUNSEL: Joseph Markin, for the Appellant
Eric Wredenhagen, for the Respondent CIBC Mortgages Inc.;
No one appeared for the other respondents
E N D O R S E M E N T A S T O C O S T S
1On March 10, 2005 we released reasons allowing the appeal in part and indicated we would receive submissions in writing as to costs of the motion for leave and the appeal. The central issue was whether the costs of an appeal to the Court of Appeal could be demanded prior to the end of the overall litigation. The order of the Court of Appeal ordered a new trial and awarded costs, but was silent on the time of payment. The present appellant brought a motion to enforce the costs order and to strike the respondent’s pleadings if the costs were not paid. The motion judge held that the costs were only payable at the end of the litigation, relying on Wine v. Fisher (1998), 42 O.R. (3rd) 153 where it was held that in the absence of contrary words, the costs of an interlocutory order were payable only at the end of the litigation.
2Counsel for the appellant then obtained a clarification from the Court via its senior legal officer, Mr. Kromkamp, who advised that he had consulted the panel on the matter and the intent was that the costs were payable forthwith. This letter was taken to the motion judge who declined to give it effect. Pursuant to leave, the appellant appealed to this court and we ruled that the motion judge, not being functus, had erred in not amending the order under appeal to comply with the clarification of the Court of Appeal’s order.
3Counsel for the appellant submitted a costs request of some $8900 for the appeal and also sought costs of the leave motion. He states that there was no point in the respondents opposing the appeal because the clarification of the order was available by February 25th, 2004, well before his leave to appeal motion was heard (April 24, 2004). Considering that all that was at stake was the timing of the payment of the costs, the whole notion of the appellant appealing the order of the motion judge was clearly to try to ensure that the respondents were put in the box of finding the funds to pay or forfeiting their right to go to trial. From any other point of view the appeal was entirely unnecessary. Appeals for such strategic purposes are not to be encouraged.
4I would award no costs to any party.
Lane J.
Howden J.
Molloy J.
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