Court File and Parties

COURT FILE NO.: 03-003/08 DIV. COURT FILE NO. 635-08 DATE: 20090617

SUPERIOR COURT OF JUSTICE – ONTARIO (DIVISIONAL COURT)

RE: Stephen Abrams v. Ida Abrams, Judith Abrams, Philip Abrams and The Public Guardian and Trustee

BEFORE: Justice Low

COUNSEL: Murray Teitel, for the Applicant/Appellant Brian A. Schnurr, for the Respondent Ida Abram Justin W. de Vries, for the Respondent Judith Abrams Archie J. Rabinowitz and Eric N. Hoffstein, for the Respondent Philip Abrams

Addendum to Costs Endorsement

[1] Following release of my costs endorsement in this matter dated May 12, 2009, correspondence was received from counsel for the applicant disclosing offers made by the applicant and by respondents to settle the quantum of costs. The applicant seeks costs of $500 from the respondent Ida Abrams, $750 from the respondent Philip Abrams and $500 from the respondent Judith Abrams for the preparation of his costs submissions relating to his motion for leave to appeal. The respondents have submitted that there should be no costs.

[2] The applicant argues that although costs were awarded to the respondents, he is entitled to costs of making the costs submissions because his costs offers to the respondents exceeded the costs awarded, his offers being $10,000 to Ida Abrams, $8,500 to Philip Abrams and $6,500 to Judith Abrams.

[3] The applicant argues that his position is supported by Rule 49.02(2) of the Rules which makes Rule 49 applicable to motions.

[4] In my view, while Rule 49 is applicable to motions, it has no applicability to the circumstances here. This is not a situation where the applicant made an offer or offers to settle the motion in comparison to which he obtained a better result. Costs of a motion are not the motion. Accordingly, the provision in rule 49.02(2) does not support the applicant's position.

[5] There will be no costs to the applicant for preparation of costs submissions.

Low J.

DATE: June 18, 2009