Court File and Parties

CITATION: Bank of Montreal v. Demarsh, 2013 ONSC 1594

DIVISIONAL COURT FILE NO.: DC-12-0005-00

DATE: 2013-03-14

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

T.D. RAY, J

BETWEEN:

BANK OF MONTREAL Appellant/Plaintiff

– and –

JAMIE R. DEMARSH aka JAMIE RAYMOND DEMARSH aka JAMIE DEMARSH and 1382791 ONTARIO LTD. Respondent/Defendant

COUNSEL:

Allyson Fox, for the appellant/plaintiff

William Procter, for the respondent/defendant

HEARD: In Writing

COSTS DECISION

[1] The appellant’s appeal from the decision of Deputy Judge Rolston dated September 17, 2012 dismissing the appellant’s claim for slightly in excess of $7,000.00, was dismissed February 6, 2013 (2013 ONSC 890) with provision for submissions for costs if the parties were unable to agree. I now have their submissions.

[2] The respondents seek their costs in the amount of $5,050.00, and in support point to a written offer to settle dated December 14, 2012 in which the respondents offered to settle the claim for $500.00. The offer was not taken up, and the respondents have bettered their offer.

[3] The appellant takes the position that substantial indemnity costs are not appropriate because their appeal was reasonable, and that only partial indemnity costs should be payable. It further claims its costs of approximately $5,000.00 for its motion to extend the time for filing the appeal because the respondents, who were self-represented at the time, failed to consent. The judge reserved the costs to the appeal.

[4] The appeal was unsuccessful. The respondents, as the successful parties, are entitled to their costs. There is no merit to the appellant’s argument that they should be entitled to their costs of the leave motion. It missed the deadline. It is particularly inconsistent for the appellant to want its costs of its leave motion in the amount of $5,000, but then argue that $5,000 is too much to be paid to the respondents for the unsuccessful appeal, particularly in the face of the respondents’ written offer which it declined to accept and in the face of its own costs outline which set its costs at over $13,500.00

[5] Under these circumstances, I would happily have awarded closer to $13,000 as costs that a paying party could reasonably have expected to pay[^1]. However, the respondents only seek $5,050.00.

[6] The respondents are awarded their costs fixed at $5,050.00 payable by the appellant within 30 days.

Honourable Justice Timothy Ray

Released: March 14, 2013

CITATION: Bank of Montreal v. Demarsh, 2013 ONSC 1594

DIVISIONAL COURT FILE NO.: DC-12-0005-00

DATE: 2013-03-14

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Honourable Justice Timothy Ray

BETWEEN:

BANK OF MONTREAL

Appellant/Plaintiff

– and –

JAMIE R. DEMARSH aka JAMIE RAYMOND DEMARSH aka JAMIE DEMARSH and 1382791 ONTARIO LTD.

Respondent/Defendant

COSTS DECISION

Released: March 14, 2013

[^1]: Rules of Civil Procedure, Courts of Justice Act, R.R.O. 1990, Reg. 194, s 57.01(1)(0.b)