COURT FILE NO.: 433/08
DATE: 20080915
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
YING KWAN also known as CRYSTAL KWAN and YI HUAN CHEN
Plaintiffs
- and -
33 CHARLES STREET EAST INC., JARDINE HILLS REALTY INC. and SAMMY S.T. HUNG
Defendants
Richard P. Quance, for the Plaintiffs
Irving Marks and Carla Lubell, for the Defendant, 33 Charles Street East Inc.
HEARD at Toronto: September 15, 2008
JANET WILSON J.: (Orally)
[1] The plaintiffs’ motion for leave to appeal from the August 13, 2008, Order of Allen J., as to costs is dismissed.
[2] On July 10, 2008, Allen J. granted partial summary judgment in favour of the defendants. She dismissed the plaintiffs’ claim with respect to agency and on consent with respect to specific performance. She accepted two of the three arguments raised by the plaintiffs on the summary judgment motion. She ordered that the issues of notice and relief from forfeiture should proceed to trial. There is no appeal from her substantive order.
[3] After reviewing the written submissions for costs submitted by the plaintiffs and the defendant, 33 Charles, Allen J. concluded that each party should bear their own costs. She relied upon the principle of Boucher v. Public Accountants Council, [2004] O.J. No. 2634, with respect to the reasonable expectation of the parties.
[4] The plaintiffs bear the two-pronged onus of proof as outlined in Rule 62.02(4)(b) of the Rules of Civil Procedure to succeed in a motion for leave to appeal. That Rule provides:
Leave to appeal shall not be granted unless:
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[5] Cost awards are inherently discretionary. The summary judgment motion resulted in partial success for both parties. There is no specific case that governs this issue that is directly on point. However, declining to make an award for costs when success is divided is within the ambit of usual cost orders. I note that the specifics of Rule 20.06(1) of the Rules of Civil Procedure for improper use of the rule were not engaged in the facts of this case.
[6] In these circumstances, I cannot conclude that there is a good reason to doubt the correctness of Allen J.’s Order, nor can I conclude that this motion for leave to appeal involves matters of such importance justifying leave to appeal being granted.
COSTS
[7] After hearing oral submissions from counsel, I fix costs in the amount of $1,500.00 payable by the plaintiffs forthwith to the defendant 33 Charles.
JANET WILSON J.
Date of Reasons for Judgment: September 15, 2008
Date of Release: September 18, 2008
COURT FILE NO.: 433/08
DATE: 20080915
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
YING KWAN also known as CRYSTAL KWAN and YI HUAN CHEN
Plaintiffs
- and -
33 CHARLES STREET EAST INC., JARDINE HILLS REALTY INC. and SAMMY S.T. HUNG
Defendants
ORAL REASONS FOR JUDGMENT
JANET WILSON J.
Date of Reasons for Judgment: September 15, 2008
Date of Release: September 18, 2008