Baines v. Hehar, 2014 ONSC 3007
CITATION: Baines v. Hehar, 2014 ONSC 3007
DIVISIONAL COURT FILE NO.: 93/13
DATE: 20140514
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, SWINTON AND LEDERER JJ.
BETWEEN:
ELEANOR BAINES Plaintiff (Responding Party)
– and –
NAVDEEP SINGH HEHAR and MANMOHAN S. HEHAR Defendants (Moving Party)
In Person
David L. Silverstone, for the Defendants (Moving Party)
HEARD at Toronto: May 14, 2014
ORAL REASONS FOR JUDGMENT
SWINTON J. (orally)
[1] The moving parties, the defendants, have brought a motion pursuant to s. 21(5) of the Courts of Justice Act to set aside the order of Sachs J., dismissing a motion for leave to appeal an order denying costs of an action.
[2] To succeed on such a motion, the moving party must show that the motions judge declined jurisdiction - for example, by applying the wrong legal test for leave to appeal, acting on a wrong principle, disregarding a statutory right or failing to give a party a right to be heard (see Universal AM-Can Ltd. v. Tornorth Holdings Ltd. (2003), 47 C.P.C. (5th) 304 (Ont. Div. Ct.) at para. 3).
[3] The motions judge set out the test for leave to appeal a costs order, noting correctly that leave is given sparingly, and only if the trial judge has acted on a wrong principle.
[4] The motions judge made no error in principle. She considered the moving parties’ argument that they were denied natural justice in that they were not given an opportunity to make submissions with respect to the plaintiff’s impecuniosity. She rejected that argument at para. 4 of her endorsement, stating:
I have some difficulty with the Defendants’ assertion that they had no opportunity to make submissions with respect to the Plaintiff’s impecuniosity. First, the issue was raised in her costs submissions to Moore J., albeit in the context of the inability to pay anything but a small monthly amount if costs were awarded. Second, Moore J. outlined the trial evidence that supported his finding as to the Plaintiff’s impecuniosity, including the fact that she lives in subsidized housing and has no income other than disability pensions.
[5] The motions judge also considered the argument that the trial judge erred in awarding no costs because of the plaintiff’s impecuniosity, and she accepted that impecuniosity can be a relevant consideration in the award of costs. We are not persuaded that Walsh v. 1124660 Ontario Ltd., 2008 ONCA 522 and Walker v. Ritchie, 2006 SCC 45, [2006] 2 S.C.R. 428 preclude consideration of impecuniosity as a factor in considering costs.
[6] In our view, the motions judge did not decline jurisdiction, as she did not apply a wrong principle or the wrong test for leave. She was alive to the competing considerations in the awarding of costs, including the conduct of the case, the merits of the case, access to justice and the control of frivolous law suits. She simply did not accept the moving parties’ arguments for granting leave to appeal.
[7] Therefore, this motion to vary the order of Sachs J. is dismissed.
THEN J.
COSTS
[8] I have endorsed the Motion Record as follows, “This motion is dismissed for oral reasons delivered by Swinton J. on behalf of the Court. In our view, it is fair and reasonable that costs in the amount of $300 be awarded to the respondent who was successful in this Court, which costs are to be offset against the amount of $3,700 which the respondent still owes in costs to the moving party from the appeal.”
SWINTON J.
THEN J.
LEDERER J.
Date of Reasons for Judgment: May 14, 2014
Date of Release: May 16, 2014
CITATION: Baines v. Hehar, 2014 ONSC 3007
DIVISIONAL COURT FILE NO.: 93/13
DATE: 20140514
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, SWINTON AND LEDERER JJ.
BETWEEN:
ELEANOR BAINES Plaintiff (Responding Party)
– and –
NAVDEEP SINGH HEHAR and MANMOHAN S. HEHAR Defendants (Moving Party)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: May 14, 2014
Date of Release: May 16, 2014