Speciale Law Professional Corporation v. Shrader Canada Limited
CITATION: Speciale Law Professional Corporation v. Shrader Canada Limited, 2017 ONSC 5793
DIVISIONAL COURT FILE NO.: DC-16-758
DATE: October 11, 2017
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
MATHESON, TRIMBLE and SHEARD JJ.
RE: Speciale Law Professional Corporation and Anthony M. Speciale
AND:
Shrader Canada Limited
COUNSEL: R. Schipper, Counsel for the Respondents/Solicitors
R. Fisher, Counsel for the Appellant/Client
HEARD: In Writing
COSTS ENDORSEMENT
Trimble J.
[1] This costs endorsement arises from our decision granting the appeal in this matter, at 2017 ONSC 3613. Costs of the appeal have been addressed. It remains to deal with costs of the motion appealed from and the related leave to appeal motion.
[2] The general principles applicable to party and party costs are well settled. Costs are discretionary. Rule 57.01 of the Rules of Civil Procedure sets out factors the Court may consider in exercising its discretion in addition to the result of the proceeding and any written offers to settle made. Overall, the objective is to fix an amount that is fair and reasonable, having regard to, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634, 71 O.R. (3d) 291 (C.A.) at paras. 26, 38, and Anderson v. St. Jude Medical Ins. (2009) 2006 SCC 6, 264 D.L.R. (4th) 577 (Div. Ct.).
[3] Certain general principles have now been expressly articulated in subparagraphs (0.a) and (0.b) of Rule 57.01, specifically the principle of indemnity and the affirmative obligation to consider the amount of costs than an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed.
[4] Both sides have provided the Court with costs submissions. The Appellant seeks costs of $9,150.68 for the Motion for Leave to Appeal decided by Arrell, R.S.J., on December 23, 2017 (with reasons delivered on January 19, 2017), and $13,195.45 for the attendance before Parayeski, J. on August 16, 17 and 18, 2016. The Respondents submit that there should be no costs.
[5] With respect to the costs of the Leave Motion, neither the Order granting Leave to Appeal nor the R.S.J.’s subsequent reasons address the question of costs. We agree with the Respondents that since Arrell, R.S.J. did not order or otherwise address costs, we have no power to award them: Orkin, The Law of Costs, 2nd ed., Vol. II, page 4-4, para. 402.
[6] With respect to the costs of the appearances before Parayeski, J., the Respondents offer several broad arguments to support their contention that the fees requested by the Appellant should be reduced, the most significant of which is that the issue before Parayeski, J. was the adequacy of the Assessment Officer’s reasons, not the issue of onus, on which this Court reversed. Therefore, argue the Respondents, no costs should be awarded. Essentially the Respondents suggest that an issue-based order is appropriate. We disagree.
[7] The Respondent did not argue any specific reductions in time, other than to say that the time spent before Parayeski, J. was brief, totalling three or four hours, spread over three days. However, we note that Parayeski, J. awarded the Respondents, who had prevailed, costs of $27,000. We also note that the Appellant made an offer to settle. While we have considered the offer, it was not determinative.
[8] Having considered all relevant factors in this case in the exercise of our discretion with respect to costs, we find it fair and reasonable that the costs of the attendance before Parayeski, J. follow the event in the appeal, and that the costs should be fixed at $12,500, all inclusive.
Trimble J.
I Agree
Matheson J.
I Agree
Sheard J.
CITATION: Speciale Law Professional Corporation v. Shrader Canada Limited, 2017 ONSC 5793
DIVISIONAL COURT FILE NO.: DC-16-758
DATE: October 11, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Speciale Law Professional Corporation and Anthony M. Speciale
AND:
Shrader Canada Limited
COSTS ENDORSEMENT
Trimble J.
Released: October 11, 2017