CITATION: Allen v. Vali Orchard Pharmacy Inc., 2014 ONSC 1460

COURT FILE NO.: DC-13-007

DATE: 2014-02-28

SUPERIOR COURT OF JUSTICE – ONTARIO

(DIVISIONAL COURT)

RE: Angelic Allen v. Vali Orchard Pharmacy Inc. and Shoppers Drug Mart Inc.

BEFORE: D. J. Taliano, W.L. Whalen and J. R. Sproat JJ.

COUNSEL: K. H. Knutsen, E. S. Knutsen, D. F. Macgillivray, for the Plaintiff/Respondent

C.R. Colraine, for the Defendants/Appellants

E N D O R S E M E N T

COSTS

[1] As set out in Mr. Colraine’s letter of June 27, 2013, to Fitzpatrick J. the parties agreed that “the issue of costs for all motions will be decided by the panel of the Divisional Court”.

[2] We see no error by Pierce J. in awarding costs of the summary judgment motion on a partial indemnity basis, in the amount of $18,000, inclusive of fees, disbursements and HST.

[3] Pierce J. noted that in arguing costs of the summary judgment motion the plaintiff’s counsel focused more on the merits of the action than the motion and noted that it is for the trial court to make findings related to allegations of bad faith. The same can be said of the costs submissions related to the appeal.

[4] Having regard to Orkin, The Law of Costs 2nd ed. looseleaf (Toronto, On. Canada Law Book, 2013) at para. 408.16.1 and Park v. Park 2011 ONSC 5954 (Div. Ct.) the general rule is that the costs of an application for leave to appeal are in the cause of the appeal. We see no reason to depart from that general rule in this case.

[5] The plaintiff had earlier sought, and the defendants had agreed, that $10,000 was a reasonable amount for the partial indemnity costs of the application for leave to appeal. We do not accept that the costs related the appeal should be awarded on a substantial indemnity basis. While the defendants did not succeed there was an arguable legal issue which resulted in leave to appeal being granted. As such we award the plaintiff partial indemnity costs of the application for leave to appeal in the amount of $10,000 plus H.S.T.

[6] On the appeal the plaintiff seeks costs of $21,378 on a partial indemnity basis and $31,433 on a substantial indemnity basis. Both amounts are inclusive of H.S.T. The plaintiff also seeks an additional $3,420 on a substantial indemnity basis related to the further submissions as to the treatment of costs on the leave to appeal.

[7] In determining the appropriate award for costs we have factored into our consideration that:

(a) there was inevitably some duplication of effort having three lawyers involved on the part of the plaintiff;

(b) plaintiff’s counsel made helpful submissions regarding treatment of the leave to appeal costs;

(c) the reasonable expectations of the defendants as to the costs that might be awarded against them as reflected in the $10,000 amount agreed to be reasonable on the leave application;

(d) the importance of this matter to the parties and particularly to the plaintiff whose ability to proceed with a claim was at stake; and

(e) the financial ability of the defendants to pay costs.

[8] In the result we award costs of the appeal to the plaintiff in the amount of $22,500 all inclusive.

D. J. Taliano J.

W. L. Whalen J.

J. R. Sproat J.

DATE: February 28, 2014

CITATION: Allen v. Vali Orchard Pharmacy Inc., 2014 ONSC 1460

COURT FILE NO.: DC-13-007

DATE: 2014-02-28

SUPERIOR COURT OF JUSTICE – ONTARIO

(DIVISIONAL COURT)

RE: Angelic Allen v. Vali Orchard Pharmacy Inc. and Shoppers Drug Mart Inc.

BEFORE: D. J. Taliano, W.L. Whalen and J. R. Sproat JJ.

COUNSEL: K. H. Knutsen, E. S. Knutsen, D. F. Macgillivray, for the Plaintiff/Respondent

C.R. Colraine, for the Defendants/Appellants

ENDORSEMENT

D. J. Taliano, W.L. Whalen and J. R. Sproat JJ.

DATE: February 28, 2014