DATE: 20021204

DOCKET: C36305

COURT OF APPEAL FOR ONTARIO

RE: ONTARIO HARNESS HORSE ASSOCIATION (Applicant/Appellant) – and – THE ONTARIO RACING COMMISSION and SUDBURY DOWNS HOLDING, A DIVISION OF MACRANALD ENTERPRISE INCORPORATED (Respondents/Respondents in Appeal)

BEFORE: MORDEN, CATZMAN and ROSENBERG JJ.A.

COUNSEL:

John B. Laskin and Arlen K. Sternberg for the appellant Douglas J. Los for the respondent Sudbury Downs Holding

HEARD: Written Submissions Filed

E N D O R S E M E N T

Should Costs be awarded against Sudbury Downs Holding?

[1] We are satisfied that the reasons upon which the court relied not to award costs against the Ontario Racing Commission are not properly applicable to the position of Sudbury Downs Holding. It stood in an adversarial relationship to the Ontario Harness Horse Association and, accordingly, we think that the decision to award costs against it was reasonably based.

[2] In accordance with the decision of this court in Canadian Broadcasting Corp. Pension Plan (Trustee of) v. B.F. Realty Holdings Ltd., November 13, 2002, the costs in question should be fixed under the new costs regime, subject to the exercise of the court’s discretion in the interest of justice between the parties. Each set of costs is fixed on the partial indemnity scale.

Costs of the application for Judicial Review

[1] The O.H.H.A. has fairly stated that we may wish to have regard to the amount of $7,500 fixed by the Divisional Court as the respondent’s costs of the application. We do so and, also, take into account that the O.H.H.A prepared substantially more material for the application than did the respondent. We fix the fee portion at $12,000. The disbursements are fixed in the amount of $1,462.25. G.S.T. is awarded on the applicable fee and disbursements.

Costs of the Motion for Leave to Appeal

[2] In our view, based substantially on amounts fixed in similar cases on these motions, the costs under this heading should be fixed in the amount of $3,000. The disbursements are fixed in the amount submitted at $1,464.50. G.S.T. is allowed on the applicable fees and disbursements.

Costs of the Appeal

[3] We have considered the itemized claim under this heading and, subject to one adjustment, are unable to conclude that there is any reasonable basis for taking issue with the items claimed. The adjustment relates to the fees claimed respecting Ms. Bailey and Mr. Sternberg. To be consistent with the decision in Canadian Broadcasting Corp., above, we reduce the hourly amounts relating to their services to $200 and $150, respectively. Accordingly, we fix the total fees on appeal in the amount of $27,880.00. The disbursements are fixed in the amount submitted at $2,499.75. G.S.T. is allowed on the applicable fees and disbursements.

“J.W. Morden J.A.”

“M. A. Catzman J.A.”

“M. Rosenberg J.A.”