DATE: 20031027

DOCKET: C38041

COURT OF APPEAL FOR ONTARIO

RE: TERRENCE ARTHUR ECCLES (Applicant (Appellant)) – and – MARIA EDUARDA ECCLES (Respondent (Respondent))

BEFORE: BORINS, CRONK and ARMSTRONG JJ.A.

COUNSEL: Paul D. Amey, for the applicant (appellant)

Carole Curtis, for the respondent (respondent)

HEARD: January 20, 2003

On appeal from the judgment of Justice C. Raymond Harris of the Superior Court of Justice dated March 8, 2002.

ENDORSEMENT ON COSTS

[1] The respondent wife was substantially successful in this appeal. The appellant husband succeeded on two issues which were of minor significance in comparison to the success of the respondent.

[2] The respondent seeks costs on a substantial indemnity basis on the theory that she was substantially successful. In the alternative, she seeks costs on a partial indemnity basis. Substantial indemnity is comparable to the former solicitor/client scale of costs. The fact that there is substantial success is not, without considerably more, a reason to award costs on a substantial indemnity basis. In our view, this is not a case for an award of costs on a substantial indemnity basis.

[3] The respondent’s claim for costs on a partial indemnity basis is $32,825.25 which includes fees and disbursements. While we do not question the hours docketed by counsel for the appellant, our view is that the costs claim is too high. The appellant’s claim for costs on a partial indemnity basis is $8,000 including fees, disbursements and Goods and Services Tax.

[4] Taking into account the different degrees of success in the appeal, we would award the respondent costs on a partial indemnity basis of $15,000 including fees, disbursements and Goods and Services Tax. We would make no award for costs in favour of the appellant.

“S. Borins J.A.”

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”