Court File and Parties

CITATION: Horstein v. Orbach, 2014 ONSC 4281

DIVISIONAL COURT FILE NO.: 303/13, 304/13 and 305/13

DATE: 2014-07-17

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DANIEL HORSTEIN, Plaintiff (Respondent)

AND:

LILA ORBACH, Defendant (Appellant)

BEFORE: THEN J.

COUNSEL: Michael A. Katzman for the Plaintiff (Respondent) Stephen Dyment for the Defendant (Appellant)

ENDORSEMENT

[1] The Court should strive to fix costs in an amount that is fair and reasonable having regard to the factors in rule 57.01(3) for the unsuccessful party to pay rather than based on the amount of costs incurred by the successful party. Boucher (2004), 70 O.R. (3d) 291 (C.A.).

[2] In this case the respondent seeks costs in the amount of $8,696.89 on a partial indemnity basis whereas the unsuccessful moving party submits costs should be fixed in the amount of $1,200.

[3] This was a relatively simple motion seeking to reinstate three appeals from the Small Claims Court which had been dismissed by the Registrar for late filing involving actions in which approximately $13,000 is in issue.

[4] With respect to rule 57.01(3) the parties emphasize factors (o.a) through (e) of rule 57.01(1) and it is conceded that the motion was not complex. In my view the issues were straightforward and did not occupy a great deal of court time.

[5] Having regard to the factors in rule 57(01)(1) the costs sought by the respondent are excessive and disproportionate having regard to the issues and complexity of this proceeding. In my view, the amount of costs which is fair and reasonable in the circumstances of this case is $2,500 all inclusive to be payable to the respondent within 30 days as requested by moving party.

THEN J.

Date: July 17, 2014