Court File and Parties
CITATION: Balev v. Baggot, 2016 ONSC 841
DIVISIONAL COURT FILE NO.: DC-15-541
DATE: 20160205
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C., SACHS & VARPIO JJ.
BETWEEN:
JOHN PAUL BALEV Respondent
– and –
CATHERINE-ROSE BAGGOTT Appellant
-and-
THE OFFICE OF THE CHILDREN’S LAWYER Intervener
Counsel:
Steven M. Bookman and Chris Stankiewicz, for the Respondent
Michael J. Stangarone and Kristy A. Maurina, for the Appellant
James Stengel, for the Intervener
HEARD at Toronto: In Writing
DIRECTIONS CONCERNING SUBMISSIONS OF THE NOVEMBER 23, 2015 COSTS ORDER OF MACPHERSON J
MARROCCO A.C.J.S.C.
[1] The motion judge made a costs order requiring the appellant to pay $10,000 inclusive of HST and disbursements to the respondent. This order was dated November 23, 2015. The appellant served a Supplementary Notice of Appeal two days later (November 25, 2015), asking the Court to set aside this order.
[2] This appeal was heard on the merits five days later on November 30, 2015.
[3] When our decision was released, the Court did not allow or deny this request. When the appellant brought this omission to the Court’s attention, the Court contacted the respondent’s counsel by email and asked for submissions.
[4] The Court received a fax communication from the respondent’s counsel dated January 25, 2016 indicating that it had been unable to respond to this supplementary ground of appeal in the five days between service of the Supplementary Notice of Appeal and the hearing of this appeal.
[5] The respondent advised in the same communication that it has asked for leave to appeal to the Court of Appeal and suggested that this Court not consider the original costs order because the matter may be adjudicated upon by the Court of Appeal.
[6] We decline to leave the costs order of the motion judge to the Court of Appeal in the event that leave to appeal is granted.
[7] The respondent also submitted that the appellant should not now be permitted to add the costs order to its appeal because the respondent was unable to file materials responding to this request because the supplementary notice was served only 5 days before the appeal was argued. As indicated the appellant moved quickly once the cost order was made.
[8] We have decided to consider the question of costs. The matter was properly before us and not addressed in any way due to an oversight. Service of the Supplementary Notice of Appeal so proximate to the hearing of the appeal was not due to any the appellant’s indifference or lack of diligence.
[9] The respondent will have ten days from the release of this order to make submissions concerning the $10,000 cost order made by the motion judge. If the appellant wishes to file a Reply it will have three days from the receipt of the respondent’s submissions to do so.
MARROCCO A.C.J.S.C.
SACHS J.
VARPIO J.
Released: 20160205
CITATION: Balev v. Baggot, 2016 ONSC 841
DIVISIONAL COURT FILE NO.: DC-15-541
DATE: 20160205
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C., SACHS & VARPIO JJ.
BETWEEN:
JOHN PAUL BALEV Respondent
– and –
CATHERINE-ROSE BAGGOTT Appellant
-and-
THE OFFICE OF THE CHILDREN’S LAWYER Intervener
REASONS FOR JUDGMENT
Released: 20160205