Superior Court of Justice – Ontario (Divisional Court)
Citation: Whitty v. Wells, 2014 ONSC 6927
Divisional Court File No.: 359/14
Date: 2014-11-28
Re: Patrick Whitty and others v. Edward N. Wells and others
Before: Nordheimer J.
Counsel: V. Zbogar, for the applicants (plaintiffs) A. Browne, for the respondents
Heard at Toronto: November 28, 2014
Endorsement
[1] The plaintiffs seek leave to appeal from the order of McEwan J. dated July 10, 2014 in which he made no award of costs as between the plaintiffs and the defendants (save for the defendant Antoniani) of certain motions that he had heard. At the end of the hearing, I dismissed the motion for leave to appeal. However, because the courtroom in which I heard the matter could not record the oral reasons that I would have given, I advised counsel that my reasons would follow. I now provide those reasons.
[2] While the plaintiffs seek leave to appeal under both tests set out in r. 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, their principle basis for doing so is that there is good reason to doubt the correctness of the decision and the matters involve issues of importance.
[3] I do not accept that there is good reason to doubt the correctness of the order made. Decisions as to costs are the quintessential exercise of discretion. The motions judge had dealt with a number of motions over a period of many months. He was intimately familiar with the issues raised and the conduct of the parties. There was a measure of success on both sides in terms of the outcome of the motions. The motions judge ultimately concluded that the parties should bear their own costs.
[4] I note, in that regard, that the plaintiffs were, through their own motions, seeking an indulgence from the court in terms of transferring existing Small Claims Court matters to this court, attempting to then consolidate those actions and amending the existing claims. Where a party is seeking an indulgence, and is successful, the normal rule that costs follow the event does not necessarily apply. Indeed, it is frequently the case that, in those situations, the successful party does not recover costs because of the reality that it was the failing of that party that led to the need for a motion in the first place.
[5] In any event, there is no basis for me to conclude that the motions judge, in reaching his decision, made an error in principle or failed to consider relevant facts that he ought to have considered. He exercised his discretion in a particular way based on his view of the relative success of the parties and their conduct on the motions. For example, he noted (at para. 20) that:
… much time was wasted at the motions dealing with the difficulties that were created by the plaintiffs with respect to the state of the pleadings.
[6] What the plaintiffs essentially wish to do is to get an appellate court to substitute its exercise of discretion for that of the motions judge. There is no basis upon which an appellate court could properly do that.
[7] Further, the situation here does not raise any matter of general importance. The plaintiffs’ effort to dress up this case as to giving rise to issues involving the application of the new rule regarding proportionality, or regarding the relative resources of the parties as a factor in awarding costs, are not matters that are new or novel as they relate to costs awards. They also do not change the essential nature of the decision. It is a costs decision that turns on its particular facts. It has no impact beyond the immediate parties to the litigation.
[8] Finally, the fact that the motions judge reached a different conclusion as to the proper disposition of costs for another party, who was separately involved in these motions, does not constitute that decision as a “conflicting” one for the purposes of the test for leave to appeal under 62.02(4)(a). A conflict must be in the principles applied, not in the result.
[9] It is for these reasons that the motion for leave to appeal was dismissed.
NORDHEIMER J.
DATE: November 28, 2014