CITATION: Bosworth v. Coleman, 2014 ONSC 7192
DIVISIONAL COURT FILE NO.: 383/14
DATE: 20141211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
JOAN BOSWORTH, JENNIFER ANNE BOSWORTH
Plaintiffs
(Respondents)
– and –
KENNETH COLEMAN, NICOLA BERTINI, DAIMLER CHRYSLER SERVICE INC.
Defendants
(Moving Parties)
Kenneth Arenson, for the Plaintiffs (Respondents)
David N. Delagran, for the Appellants/Moving Party
HEARD at Toronto: December 11, 2014
HARVISON YOUNG J. (ORALLY)
[1] For the following reasons, the application is dismissed.
[2] As the applicant/defendant acknowledges, cost decisions are highly discretionary and leave to appeal is granted very rarely and only in the most obvious cases: Brad-Jay Investments v. Szijjarto, 2006 42636 (ON CA), [2006] O.J. No. 5078 at para. 21 (C.A.) and also McNaughton Automotive Limited v. Co-operators General Insurance Co., 2008 ONCA at paras. 23-27. This is not one of those obvious, rare cases.
[3] The test for leave to appeal interlocutory orders is set out at Rule 62.02(4)(a) and (b). Beginning with s.62.02(4)(a), this is not a case with respect to which there are conflicting decisions on costs. The applicant complains not of the law or principles that were applied but of the actual amount. This does not constitute a conflicting decision within the meaning of the rule: Comtrade Petroleum Inc. v. 490300 Ontario Ltd., 1992 7405 (ON SC), [1992] O.J. No. 652 (Div. Ct.). There is no conflict of the principles as articulated in the cases before the Court.
[4] Turning to Rule 62.02(4)(b), Mr. Delagran submits that the motions judge made a number of serious errors that give reason to doubt the correctness of the decision. First, he submits that the motions judge erred in proceeding to hear the cost submissions following the hearing of the motions despite the fact that Mr. Delagran had asked for an opportunity to file submissions, having just seen the plaintiff’s bill of costs claiming costs of approximately $77,000 for the motion.
[5] The motions judge heard oral submissions and awarded costs payable by the defendant in the amount of $25,000. The applicant/defendant submits that the failure of the motions judge to grant its request for an opportunity to consider and respond to the plaintiff’s bill of costs which had just been presented, was a breach of procedural fairness.
[6] With respect, I disagree.
[7] As Mr. Delagran acknowledges, the Rules presume that costs submissions will follow argument of a motion. Inherent in that presumption is the expectation that parties are prepared for hearing of costs submissions following a motion. Mr. Delagran did not come to court with a bill of costs.
[8] In my view, given the general rule, it is not open to an applicant in that position to now claim that the process was unfair. For the same reason, it is much more difficult to take the position that the “reasonable expectations” of costs for this motion were much less when those of his client were not set out in a bill of costs on the day of the hearing.
[9] In the absence of a contemporaneous bill of costs, the applicant cannot now complain that the amount received in costs was beyond its reasonable expectations.
[10] The applicant also complains that the motions judge erred because the applicant/defendant was in fact successful or much more successful on the motion than the plaintiff/respondent.
[11] At para. 33 of the his reasons, the motions judge states:
In my view, the defendants ought to pay costs to the plaintiffs due to their efforts to derail the hearing of this matter in the agreed upon manner. The defendants could have readily instructed their new counsel to adopt procedures necessary to fulfill the defendants’ agreement. Moreover, the matter is of importance to the plaintiffs. Had they not succeeded, the case could have been consigned to considerable further delay. Ms. Bosworth’s evidence on that eventuality is quoted above and was not challenged on the motion. [Emphasis added]
[12] It is clear from this paragraph that the motions judge considered the issue of success and was of the view that the plaintiffs were successful, or more successful.
[13] The appellant also submits that the motions judge erred in failing to consider the issue of success as he is required to do pursuant to Rule 57. In my view, the above passage makes it clear that he was very much alive to this issue. In para. 32, the motions judge sets out the considerations applicable to fixing costs:
The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the exceptions of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras. 26, 37.
[14] It is clear from this passage in my view that the motions judge set out and applied the appropriate considerations to the facts this case. I note, in particular, that despite the fact that the plaintiff/moving party had claimed $77,000, the amount actually awarded was $25,000, which is dramatically less than that amount.
[15] For these reasons, I am not satisfied that the applicant/defendant has shown any reason to doubt the correctness of the decision. However, even if there is reason to doubt the correctness of his decision, this proposed appeal is not of such importance that, in my opinion, leave to appeal should be granted. This was a “one-off” case decided on particular circumstances that involved a number of particular issues and not one that purports to apply new considerations or principles. It is the application of settled principles to a particular set of circumstances which led to a particular result on these facts.
[16] The appeal is therefore dismissed.
COSTS
[17] I have endorsed the Motion Record, “Application dismissed for reasons delivered orally. Costs in the amount of $2,000 payable by the defendant.”
HARVISON YOUNG J.
Date of Reasons for Judgment: December 11, 2014
Date of Release: December 16, 2014
CITATION: Bosworth v. Coleman, 2014 ONSC 7192
DIVISIONAL COURT FILE NO.: 383/14
DATE: 20141211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HARVISON YOUNG J.
BETWEEN:
JOAN BOSWORTH, JENNIFER ANNE BOSWORTH
Plaintiffs
(Respondents)
– and –
KENNETH COLEMAN, NICOLA BERTINI, DAIMLER CHRYSLER SERVICE INC.
Defendants
(Moving Parties)
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: December 11, 2014
Date of Release: December 16, 2014