Court File and Parties
Citation: Plan IT Search v. Beaudoin, 2015 ONSC 3273 Court File No.: 93/15 Date: 2015-06-12
Superior Court of Justice – Ontario Divisional Court
Re: 1483860 ONTARIO INC., o/a Plan IT Search and 6573908 CANADA INC., o/a Plan IT Search Inc., Plaintiffs/Moving Parties And: JAMES BEAUDOIN, 2103235 ONTARIO INC., WORLDHIRE INC., MASON STUBEL and PATRICIA BEAUDOIN, Defendants/Responding Parties
Before: D.L. Corbett J.
Counsel: Michael Gayed, for the Plaintiffs John H. Yach, for the Defendants
Costs Endorsement
[1] On May 11, 2015, I dismissed Plan’s motion for leave to appeal with costs payable by the plaintiffs to the defendants fixed at $7,500, inclusive, payable within thirty days.
[2] Prior to my decision, on April 14, 2015, the Divisional Court office wrote to the parties:
By direction of the Administrative Judge if the parties wish to seek costs, please file submissions before the hearing date (May 11, 2015).
[3] Neither party filed costs submissions before the hearing date.
[4] The practice of hearing motions for leave to appeal in writing is new, following amendments to the Rules effective January 1, 2015. The Divisional Court wants these motions to be decided in a one-stage process. The court does not want to canvass the parties for costs submissions in writing after the decision is rendered on the leave motion.
[5] Traditionally, when motions for leave to appeal are granted, the costs of the motion for leave to appeal are fixed in a particular amount, and then left in the discretion of the panel deciding the appeal. Traditionally, this amount is awarded by the appeal panel to the party winning the appeal. And traditionally, when a motion for leave to appeal is dismissed, the responding party receives an award of “fair and reasonable” costs. These practices are always subject to the discretion of the presiding judge(s), but it would be fair to say that they are followed in the vast majority of cases.
[6] Practice is now developing on how to address costs on written leave motions. The practice appears to be unchanged where leave to appeal is granted: costs are usually fixed and left in the discretion of the panel deciding the appeal. Where leave to appeal is denied and there are no written costs submissions, my practice is to award the successful party their costs of the motion for leave to appeal in an amount I consider reasonable for partial indemnity costs given the volume of materials required for the motion and the complexity and importance of the matter. I do not seek costs submissions from the parties if they have not been filed in advance.
[7] Counsel should consider including a paragraph at the end of her factum indicating her position on costs. If it is consistent with the court’s traditional approach to costs, in my view it will be sufficient to simply state counsel’s position and the proposed quantum. Where a party is seeking a costs order that is not consistent with usual practice, or for an unusual amount, separate costs submissions should be filed in advance.
[8] Given the form of the letter sent to the parties in this case, I permitted the parties to make additional oral costs submissions by teleconference.
[9] I do not take the respondents’ silence on costs prior to the hearing date as a waiver of their request for costs but rather a decision to leave costs in the discretion of the court. I do not consider that the moving party was prejudiced in any way by this approach.
[10] I awarded costs of $7,500 on the basis of the volume of materials filed, the length and complexity of the submissions on the leave motion, and the history of the case. I still consider the award to be “fair and reasonable” and proportional to the matter at hand. I decline to change the costs award made in my decision of May 11, 2015.
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D.L. Corbett J.
Released: June 12, 2015