Court File and Parties

Citation: Moore v. Elmway, 2011 ONSC 5698 Court File No: 66/11 Date: 2011-09-30

SUPERIOR COURT OF JUSTICE - ONTARIO DIVISIONAL COURT

Re: Hugh Moore, Plaintiff /Respondent - and - Elmway Developments Limited, Enzo Mizzi, and Robert Rothman, Defendants/Appellants

Before: The Honourable Mr. Justice S.N. Lederman

Counsel: John M. Clarke, for the Plaintiff/Respondent Gregory Sidlofsky, for the Defendants/Appellants, Elmway Developments Limited and Enzo Mizzi

Heard at Toronto: Written Submissions

Endorsement As To Costs

[1] The plaintiff, having been successful on the appeal from the decision of the Master, seeks costs of the appeal in the amount of $10,941.62.

[2] That sum appears to be on a substantial, if not full, indemnity scale based on the plaintiff’s submission that the appeal was “spurious” and in keeping with the defendants’ “scurrilous” conduct in the litigation.

[3] It should be noted that the Master had awarded $3,000 to the plaintiff for his costs of the motion before her.

[4] The defendants had a right to appeal the Master’s decision and there was nothing untoward in the way the appeal was conducted. Accordingly, there is no basis to award costs to the plaintiff on a scale higher than that of partial indemnity.

[5] Just as on the motion before the Master, the appeal was based on a single legal issue that was not complex nor required lengthy argument.

[6] Having regard to the principle of proportionality and in particular what an unsuccessful party would reasonably expect to pay in relation to an appeal of this nature, I fix the plaintiff’s costs at $4,500 all inclusive, payable within 30 days.

Lederman J.

Released: September 30, 2011