Court File and Parties

Citation: Bruno Appliance and Furniture v. Cassels Brock & Blackwell, 2013 ONSC 6815 Divisional Court File No.: 80/2013 Date: 2013-11-05 Superior Court of Justice – Ontario

Re: Bruno Appliance and Furniture Inc., Plaintiff/Appellant And: Cassels Brock & Blackwell LLP, Gregory Jack Peebles and Robert Hryniak, Defendants/Respondents

And Between: Fred Mauldin, Dan Myers, Robert Blomberg, Theodore Landkammer, Lloyd Chelli, Stephen Yee, Marvin Cleair, Richard Hanna, Douglas Laird, Charles Ivan, Lyn White and Athena Smith, Plaintiffs/Appellants And: Cassels Brock & Blackwell LLP, Gregory Jack Peebles and Robert Hryniak, Defendants/Respondents

Before: Herman J.

Counsel: David Alderson, Jonathan A. Odumera, for the Plaintiffs/Appellants Luisa J. Ritacca, for Cassels Brock & Blackwell LLP, Defendants/Respondents Jonathan L. Rosenstein, for Gregory Jack Peebles, Defendant/Respondent

Costs Endorsement

[1] The defendants seek costs arising from the dismissal of the plaintiffs’ motion for leave to appeal.

[2] The plaintiffs submit that costs should be reserved to the trial judge, and be in the cause. They draw the analogy to interlocutory injunctions and cite the decision of Perell J. in Quizno’s Canada Restaurant Corp. v. 1450987 Ontario Corp., [2009] O.J. No. 2563 (S.C.J.) at para. 10. In that decision, the judge indicated that where a plaintiff had succeeded in obtaining an interlocutory injunction, it was generally preferable that costs be reserved to the trial judge and be in the cause, because the outcome of the trial would reveal whether the plaintiff’s position was worthy of being protected.

[3] Even if I were to accept the analogy to costs in an injunction, the matter before me was not the determination of whether security for costs should be ordered, but whether leave to appeal should be granted from the order of Brown J. who, on appeal, had upheld the Master’s order to order security of costs. I had to determine whether there was reason to doubt the correctness of the judge’s order. More particularly, the issues before me were whether the judge had properly applied the test for ordering security for costs and whether she had erred in failing to define the test.

[4] Brown J. did not award costs, indicating that, in her opinion, it was more just that costs of the appeal be in the cause. The Master, on the other hand, did award costs.

[5] The plaintiffs also submit that it would be unjust to award costs prior to the release of the Supreme Court of Canada’s decision involving Mr. Hryniak, another defendant in this action. That appeal involves the summary judgment granted against Mr. Hryniak. The outcome is not, in my opinion, material to a determination of costs in this motion, which concerned the decision to order security for costs.

[6] In my opinion, there should be cost consequences for this motion for leave, which was a second attempt to appeal the security for costs order.

[7] The defendant, Cassels Brock, seek costs in the amount of $4,846.75, inclusive of HST and disbursements. The defendant, Mr. Peebles, seeks costs of $4,516.93, inclusive.

[8] The plaintiff submits that the costs claimed are excessive. The plaintiff points out that its partial indemnity costs were only $3,640.55, inclusive. It argues that, as the appellant, its costs would logically be greater than those of the defendants.

[9] While the issues in this litigation are arguably complex, this motion was not. It was limited to the issue of security of costs. The parties had previously argued the matter at the initial motion and at the appeal before Justice Brown.

[10] In my opinion, costs of $2,500, inclusive of HST and disbursements, payable to Cassels Brock, and costs of $2,500, inclusive of HST and disbursements, payable to Mr. Peebles would be fair and reasonable in the circumstances, and it is so ordered.

Herman J.

Date: November 5, 2013