Moore v. Elmway, 2011 ONSC 5698

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

1The 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.

2That 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.

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

4The 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.

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

6Having 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.