Court File and Parties

CITATION: Broadbear v. Prothero 2012 ONSC 1962

COURT FILE NO.: 1937

DATE: 2012-03-30

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RE: Roy Dennis Broadbear, Respondent in Appeal/Moving Party.

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Deborah Ann Prothero, Appellant/Responding Party

BEFORE: McDermid, J.

COUNSEL: Deborah Ann Prothero, Appellant/Responding Party.

K. P. Peacocke, for Roy Dennis Broadbear, Respondent in Appeal/Moving Party.

HEARD: March 30, 2012.

ENDORSEMENT

[1] I have received and read the written submissions from Mr. Peacocke and from Ms. Prothero on the issue of costs.

[2] Mr. Broadbear sought an order quashing the appeal launched by Ms. Prothero from the order of Vogelsang J. dated July 6, 2011, or, in the alternative an order for security for costs. Ms. Prothero opposed both vigorously. Mr. Peacocke was not successful in obtaining an order to quash but was successful in obtaining an order for security for costs.

[3] Ms. Prothero submits that because she is untrained in the law she is incapable of making an argument regarding costs. Therefore, she submits that she is, “… required to allow you to exercise your discretion.” She views the order for security for costs “… sufficient punishment enough since it is already an obstacle to be overcome before justice can be served.”

[4] As my reasons reflect, I dismissed the motion to quash “reluctantly” due to my assessment of the merits of the appeal. Also, I note that most of the material filed was relevant to both claims for relief and that additional material was relevant to Ms. Prothero’s ability to fund the costs of the appeal. I believe that most of the time spent in preparation was relevant to both issues and note again that the motion for security for costs was successful. Therefore, in my opinion, this is not a situation where success was divided on the motion.

[5] Accordingly, I find that Mr. Broadbear is entitled to costs.

[6] Mr. Peacocke seeks partial indemnity costs on behalf of Mr. Broadbear in the total sum of $5,577.50 of which $436 is for disbursements. In the circumstances, I find the amount reasonable. Accordingly, Ms. Prothero shall pay the costs of the motion to Mr. Broadbear in the sum of $5,577.50. These costs shall be paid from her share of the proceeds from the sale of the Isabel Street property owned jointly by her and Mr. Broadbear so that this order will not present an obstacle to her efforts to obtain security for costs.

“Justice D. R. McDermid”

Mr. Justice D. R. McDermid

Date released: March 30, 2012.