Court and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20230502 DOCKET: C70855
Gillese, Benotto and Coroza JJ.A.
BETWEEN
Craig Boyer Plaintiff (Appellant/Defendant by Counterclaim)
and
Callidus Capital Corporation Defendant (Respondent/Plaintiff by Counterclaim)
Counsel: Peter Griffin and Jonathan McDaniel, for the appellant David Moore and Ken Jones, for the respondent
Heard: February 24, 2023
On appeal from the order of Justice Peter J. Cavanagh of the Superior Court of Justice, dated June 23, 2022.
Costs Endorsement
[1] The parties have made submissions as to costs of the r. 137.1 motion determined by this court. The successful appellant claims $273,111.22 [1] on full indemnity basis. The respondent submits that this is excessive and the amount should be reduced to $90,000. It points to this court’s decision in Park Lawn Corporation v. Kahu Capital Partners, 2023 ONCA 129 where Pepall J.A. spoke of the high costs of a r. 137.1 motion and offered a guideline of $50,000 in costs for a successful plaintiff.
[2] We do not accept the respondent’s submissions.
[3] There is a statutory presumption that the successful party be awarded full indemnity costs unless the judge determines that the award is not appropriate in the circumstances. S. 137.1(7) of the Rules of Civil Procedure provides:
If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. 2015, c. 23
[4] The award is appropriate. Upon receipt of the statement of claim the respondent counterclaimed for $150 million alleging breach of a fiduciary duty. The claims were bald and unsubstantiated.
[5] The costs of the motion are fixed in the amount of $273,111.22 inclusive of disbursements and HST.
“E.E Gillese J.A.”
“M.L. Benotto J.A”
“S. Coroza J.A.”
Footnotes
[1] This is the amended amount after correction of a calculation error.
