DATE: 20040423

DOCKET: C40952

COURT OF APPEAL FOR ONTARIO

RE:

PAUL MEGENS (Applicant/Respondent in Appeal) v. THE ONTARIO RACING COMMISSION (Respondent/Appellant in Appeal)

BEFORE:

McMURTRY C.J.O. , ABELLA AND ROSENBERG JJ.A.

COUNSEL:

Jill Dougherty

for the appellant

Peter A. Simm

for the respondent

HEARD & ENDORSED:

April 23, 2004

On appeal from the order of the Divisional Court (Lane, Brockenshire and Cameron JJ.) dated September 16, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The costs award of $60,000 for a straight-forward, one-day hearing before the Divisional Court is unsustainable and reflects several errors in the discretion exercised.

[2] Given the issues involved and the inadequacy of the evidence on preparation time, the amount is grossly excessive. It is disproportionately higher than other costs awards for similar types of proceedings. It is, moreover, so demonstrably inflated, that it violates the compensation principles underlying the costs grid, and offends against any reasonably anticipated costs award by the unsuccessful party.

[3] We find $18,000 to be a fairer and more reasonable amount.

[4] We would therefore allow the appeal, set aside the costs award, and order that costs be paid in the total amount of $18,000.

[5] Costs of this appeal and the leave application in the total amount of $5,000.