Pal v. Powell, 2009 CanLII 7098 (ON SCDC)

COURT FILE NO.: 07-CV-332319PD1

Div. Ct.: 426/08

DATE: 20090218

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: GEORGE PAL

Plaintiff

• and -

UCAL POWELL, BUD CALLIGAN, RICK HARKNESS and CARLOS PIMENTEL

Defendants

BEFORE: JUSTICES JENNINGS, BELLAMY and LITTLE

COUNSEL: Howard L. Shankman Dan J. Shields and

for the Plaintiff Hendrik T. Neuwland

for the Defendants

SUPPLEMENTARY REASONS RESPECTING COSTS

1For oral reasons delivered following the hearing on Thursday, January 22, 2009, we allowed this appeal from the judgment of Ellen Macdonald J. Following submissions from counsel we made no order as to the costs of the appeal.

2Counsel now write to say that costs of the motion before Justice Macdonald were reserved to this court by the judge granting leave to appeal. Counsel made no submissions with respect to them at the hearing before us and we did not make any order. There were three motions before Justice Macdonald. Initially, the respondent was successful on all three motions. Justice Macdonald fixed costs for all three motions at $9,000 inclusive.

3The appellant sought leave to appeal before Carnwath J. with respect to the refusal of the motion to strike the statement of claim under Rule 21.01 and the motion granting a representation order to add the union as a party defendant. Leave was granted to appeal the latter order, and success being divided, Carnwath J. made no order as to costs on the leave application.

4There is nothing before us to indicate how much of the global award was attributable to each motion. Only the matter of the representation order was before us. The disposition of the other two motions remains as ordered by Justice Macdonald.

5An arbitrary allocation of the costs awarded of $3,000 to each motion would indicate that Justice Macdonald’s cost award should be reduced to $6,000 to take into account that the appellant was successful in overturning her order with respect to the representational order. If counsel cannot agree on that disposition, then we would refer costs of the matters originally before Justice Macdonald back to her for any variation she deems fit, in light of this endorsement.