CITATION: Powless v. Smith, Windle, 1374078 Ontario Limited, 2010 ONSC 5259

COURT FILE NO: DC-09-137

DATE: 2010-10-08

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: Lynda Powless

Plaintiff (Appellant)

• and -

Shirley W. Smith by her litigation Guardian, G. Scott Smith, and

James Windle and 1374078 Ontario Limited

Defendants (Respondents)

BEFORE: Cunningham A.C.J.S.C.J., Ferrier and Lederman, JJ.

COUNSEL: Howard E. Staats, Q.C.

for the Plaintiff (Appellant)

Peter M. Quinlan,

for the Defendant (Respondent) James Windle

Ian Gerald T. Smits,

for the Defendants (Respondents) Shirley W. Smith by her Litigation Guardian G. Scott Smith and G. Scott Smith and 1374078 Ontario Limited

HEARD: Written Submissions

E N D O R S E M E N T

AS TO COSTS

[1] Counsel have filed written submissions as to costs.

[2] The appellant seeks costs of the appeal in the amount of $23,000 and costs of the trial in the sum of $50,000.

[3] The respondents submit that the costs of both the appeal and the first trial should be in the cause in order to leave the parties on an equal footing prior to the second trial being held. The respondents submit that it would be unfair for one side of the litigation to bear the costs of inadequate Reasons articulated by the trial judge. Alternatively, the respondents submit that if costs of the appeal are to be fixed in favour of the plaintiff, they should be to the plaintiff in the cause or in the further alternative that they not be required to be paid until completion of the second trial.

[4] As the appellant was successful on her appeal we so no reason to deny her costs of that proceeding.

[5] In fixing costs, the court must have regard to the principle of proportionality and the factors set out in Rule 57.01(1) and, in particular, the amount of costs that an unsuccessful party could reasonably expect to pay in relation to an appeal of this nature.

[6] The issues on appeal were not complex and turned primarily on the adequacy of Reasons. In the circumstances, an appropriate amount for costs of such an appeal is $15,000 all inclusive and we fix that amount as being the costs of the appellant.

[7] As there must be a new trial, it is appropriate that the costs of the appeal not be payable until the completion of the second trial.

[8] The fact that a second trial must be held is not the fault of the respondents and, accordingly, it is ordered that the costs of the first trial shall be in the cause.

Cunningham A.C.J.S.C.J.

Ferrier J.

Lederman J.

Released: October 8, 2010