DATE: 20011023 DOCKET: C35542
COURT OF APPEAL FOR ONTARIO
RE:
PETER KULCHYSKI, IAN McLACHLAN and ANDREW WERNICK (Applicants/Appellants –and– TRENT UNIVERSITY (Respondent/ Respondent in appeal) –and– ATTORNEY GENERAL FOR ONTARIO (Intervener)
BEFORE:
OSBORNE A.C.J.O., FINLAYSON and SHARPE JJ.A.
COUNSEL:
John B. Laskin and Frank Cesario, for the appellants
John C. Murray and Angus T. McKinnon, for the respondent
Kim Twohig, for the intervener
HEARD:
June 28, 2001
On appeal from the judgment of the Divisional Court (Justices O’Driscoll, Zuber and Czutrin) dated September 18, 2000, dismissing the application for judicial review.
S U P P L E M E N T A R Y E N D O R S E M E N T
FINLAYSON J.A.:
[1] A problem has arisen on the settlement of this order with respect to our disposition of costs in the Divisional Court. What was intended was that the appellants, if they thought it was to their advantage, could insist on having the Divisional Court costs assessed. Ordinarily, such an election is given to the party entitled to the costs, not the party obliged to pay them. In the result, such an election was usually made before the order was settled so that the order as issued was unambiguous.
[2] In this case, I agree with counsel for the respondent Trent University that, if the formal order was to reflect the reasons of this court, the appellants could delay their election indefinitely.
[3] Accordingly, I would amend para. [53] of my reasons so that, as amended, they would read:
[53] It is my opinion that the Divisional Court acted within its discretion in deciding to award costs against the appellant. I am aware of no authority for the proposition that where a court orders that costs should follow the event it is obliged to give reasons. However, it appears to me that the appellants were caught off guard by the decision of the Divisional Court to award costs against them, let alone fix the quantum of costs on the spot. In these circumstances, and having regard to the principles that favour having costs assessed by an assessment officer or by the court after an appropriate hearing on the question of the amount to be fixed (Polish National Union of Canada Inc-Mutual Benefit v. Palais Royale Ltd.(1998), 1998 CanLII 7132 (ON CA), 163 D.LR. (4th) 56 (Ont. C.A.)), I would be prepared to go along with the spirit of the respondent’s suggestion and permit the appellants, at their option, to have the amount of the costs assessed on a party and party basis. This option is to be exercised within thirty days of the date of issue of these supplementary reasons. In the event that this option is not exercised within that time limit, the respondent Trent University should be entitled to recover as costs the sum of $20,000 as fixed by the Divisional Court.
Signed: “G.D. Finlayson J.A.”
“I agree C.A. Osborne A.C.J.O.”