CITATION: Stever v. Rainbow International Carpet Dyeing & Cleaning Co., 2014 ONSC 1838

DIVISIONAL COURT FILE NO.: 274/13

COURT FILE NO.: CV-12-445000

DATE: 20140324

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MARK C. STEVER, Plaintiff

AND:

RAINBOW INTERNATIONAL CARPET DYEING & CLEANING CO., FREDERICK ROSEN, CLIFF ALBERTI and JOHN APPEL, Defendants

BEFORE: LEDERER J.

COUNSEL: David Keith Alderson, for the Plaintiff Tariq Remtulla, for the Defendants, Rainbow International Carpet Dyeing & Cleaning Co. and John Appel No One appeared for the Defendant, Frederick Rosen The Defendant, Cliff Alberti, was noted in default

COSTS ENDORSEMENT

[1] This was a motion for leave to appeal the result of a motion for summary judgment heard by Mr. Justice Morgan. The motion for summary judgment was brought on behalf of the defendant. At the outset, the plaintiff sought to have the motion adjourned until the defendants delivered affidavits of documents and agreed to submit to examination-for-discovery. The adjournment was refused. The motion was argued. In the end, having heard full submissions of the parties, the judge concluded that the motion was premature and should be adjourned more or less on the basis initially requested by the plaintiff. Rather than accept that he had demonstrated the validity of his initial approach, the plaintiff was not satisfied. The matter having been argued, it was proposed that the court, having determined the motion was premature, had no option but to refuse it. The defendants had failed to put their best foot forward.

[2] The motion for leave was refused. The test for leave to appeal was not met. The decision of the motion judge was an exercise of discretion. There was no reason to question it.

[3] The defendants, the moving party (the successful party), seek costs of the motion, on a partial indemnity scale, in the amount of $6,122.73.

[4] The plaintiff argues that this is one of those rare occasions when the losing party should be awarded costs and requests $2,750.62. In the alternative, the plaintiff says no costs order should be made.

[5] There is no reason why the costs should not follow the event. One need look no further than the plaintiff’s request for an adjournment. It demonstrates that the result was one the plaintiff, at the outset, thought was appropriate. It was one he could have (I would suggest should have) accepted. As it is, he decided to attempt to appeal a matter of discretion. He did so at the peril of having to pay costs.

[6] The amount requested is reasonable.

[7] Costs are awarded to the defendant, payable by the plaintiff, in the amount of $6,122.73.

LEDERER J.

Date: 20140324