SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: SAVE THE ROUGE VALLEY SYSTEM INC. (MOVING PARTY) AND SIXTEENTH WARDEN LIMITED (RESPONDING PARTY)
BEFORE: Justice Edward Then
COUNSEL: Mr. Murray Klippenstein, for the Moving Party
Richard Storrey, for the Responding Party
C O S T S E N D O R S E M E N T
1In this matter leave to appeal was refused.
2The Respondent seeks costs in the amount of $10,746.01 on a substantial indemnity basis.
3The Applicant’s initial position is that there should be no order as to costs as the Applicant should not be penalized for a problem which the OMB subsequently repaired.
4Alternatively it is submitted that there is no justification for costs on a substantial indemnity basis. The more appropriate figure on a partial indemnity basis it is submitted is $7,385.14.
5The Respondent submits that the $7,385.14 be further reduced to $5,029.00 as the preparation time is excessive.
6In my view, this is an appropriate case for costs to be awarded as the Respondent sought leave notwithstanding this is not a matter of public importance.
7I have read and considered the submissions of the parties, and have taken into account the factors set out in Rule 57.01 of the Rules of Civil Procedure and I have also considered the principles in Zesta Engineering Ltd., [2002] O.J. No. 4495 (Ont. C.A.) recently affirmed in Boucher v. Public Accountants Council for the Province, [2004] O.J. No. 2634 that costs must be reasonable and fair to the losing party whose reasonable expectations must be taken into account.
8Having regard to all the circumstances, I do not think a substantial indemnity scale is warranted nor do I think that the preparation time is excessive so as to warrant interference. In my view, it is fair and reasonable in the circumstances of this case to award costs on a partial indemnity scale in the amount of $7,500.00 all inclusive.
Then J.
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