COURT FILE NO.: 04-B8059

DATE: 2007-07-03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: James Leone (Plaintiff)

v.

University of Toronto Outing Club, Kolapore Uplands Wilderness Ski Trails Association and Her Majesty the Queen in Right of Ontario, As Represented by The Minister of Government Services (Defendants)

BEFORE: THE HONOURABLE MR. JUSTICE A.J. STONG

COUNSEL: S.E. Healey, for the Plaintiff

S. Parsons, for the Defendant University of Toronto Outing Club, and Kolapore Uplands Wilderness Ski Trails Association

Timothy Alexander, for Her Majesty the Queen in Right of Ontario

ENDORSEMENT AS TO COSTS ON MOTION FOR LEAVE TO APPEAL TO THE DIVISIONAL COURT

[1] The Defendants' motions for leave to appeal were heard by me over three dates: January 10, 2007 for a full day; May 1, 2007 for a half day; and May 28, 2007 for 1.5hours.

[2] Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 ruled that Rule 57.01 (3) makes it clear that fixing of costs is not simply a mechanical exercise but that "the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant". (para. 26)

[3] The length of argument on the motion for leave confirms that there were numerous issues to be addressed. It cannot be said that the motions were unreasonably brought, nor can the defendants be unduly penalized for pursuing early judicial determination of issues, which might possibly have been resolved without the need of a trial. Of particular note was the submission that Justice Jenkins found that there was no judicial definition of the words "rural", "vacant", "undeveloped", "forested" or "wilderness."

[4] As alluded to in my reasons, definitions of such characteristics arise out of cases relied upon by the defendants which turned on their own facts and did not involve disparate principles.

[5] It was important to the plaintiff to maintain the decision of Jenkins J in order that his action not be threatened by a summary judgment ruling.

[6] The amount of time spent by the plaintiff in preparing for this motion is not unreasonable and costs will be awarded to the plaintiff in accordance with the schedule presented to this court on a partial indemnity basis in the amount of $15,427.49 payable within 30 days of the date of this order.

STONG J.

DATE: July 3, 2007