ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CAPUTO, DAMBROT AND SWINTON JJ.
B E T W E E N:
MYRNA LO
Plaintiff
(Respondent)
- and -
MARK DAVID WARREN
Defendant
(Appellant)
Alan B. Dryer, for the Plaintiff (Respondent)
Brett D. Moldaver, for the Defendant (Appellant)
HEARD at Toronto: October 21, 2009
dambrot J.: (Orally)
1At the conclusion of a three and a half day trial of a claim for damages on a count of trespass and damage to property, the trial judge dismissed the claim without costs, without giving the successful party an opportunity to make submissions as to costs. While a trial judge has a discretion to refuse costs, procedural fairness requires that the judge first hear and consider the submissions of counsel.
2The respondent argues that the cost decision was nevertheless correct given the trial judge’s finding that both parties failed to use common sense in pursuing the litigation.
3We are of the view however, that in the circumstances our task is not simply to review the determination of the trial judge for correctness. Instead we must consider the matter afresh. Since the trial judge did not hear the appellant’s submissions, his costs order and his underlying findings do not attract the deference they would otherwise be accorded on appeal.
4Absent special circumstances warranting a departure from the usual rule, costs should follow the event. We see nothing in the circumstances here that makes this a special case. As a result, we conclude that costs should be awarded to the appellant on a partial indemnity scale in an amount to be assessed.
COSTS
5I have endorsed the Appeal Book and Compendium: “The appeal is allowed for oral reasons. Costs to the appellant of the application for leave to appeal and the appeal in the total amount of $7,000.00.”
DAMBROT J.
CAPUTO J.
SWINTON J.
Date of Reasons for Judgment: October 21, 2009
Date of Release: October 30, 2009
COURT FILE NO.: 146/09
DATE: 20091021
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
caputo, DAMBROT AND SWINTON JJ.
B E T W E E N:
MYRNA LO
Plaintiff
(Respondent)
- and -
MARK DAVID WARREN
Defendant
(Appellant)
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: October 21, 2009
Date of Release: October 30, 2009