DATE: 20051128

DOCKET: C43574

COURT OF APPEAL FOR ONTARIO

RE:

DAVID WEBB and DIANN WEBB (Applicants (Appellants)) – and – METRO TORONTO CONDOMINIUM CORPORATION NO. 973 (Respondent (Respondent in Appeal))

BEFORE:

CRONK, ARMSTRONG and LANG JJ.A.

COUNSEL:

Timothy Pinos

for the appellants

Patricia M. Conway

for Metro Toronto Condominium Corporation No. 973

Robert E. Blair

for Bell ExpressVu

HEARD & RELEASED ORALLY:

November 24, 2005

On appeal from the Order of Justice Susan G. Himel of the Superior Court of Justice dated January 20, 2005.

E N D O R S E M E N T

[1] In determining the costs entitlement of the respondents, the application judge directed herself to the relevant legal principles, rules of court and related jurisprudence regarding the assessment of costs. However, her reasons contain no analysis of the application of these principles to the facts of this particular case, save for the expression of her conclusion that the costs awarded by her on a partial indemnity basis in respect of each respondent were “fair and reasonable”. In our view, this was an error in principle.

[2] The reasons of the application judge indicate her intention to award costs to both respondents on a partial indemnity scale. In the case of the respondent Metro Toronto Condominium Corporation No. 973 (“MTCC”), however, the quantum of the costs awarded was equal to 87% of the substantial indemnity costs of the corporation. The effect of this costs disposition, therefore, was to award to this respondent costs that exceeded a reasonable partial indemnity bill in that the amount of the award approached a bill calculated on the substantial indemnity scale. On this basis, the quantum of the application judge’s costs award in favour of the respondent MTCC must be set aside.

[3] In the case of the respondent Bell ExpressVu, we see no error in the application judge’s award of costs in its favour. However, the quantum of the award is disproportionate to the extent of this respondent’s participation in this proceeding. In this sense, the award made by the application judge cannot be said to be fair and reasonable.

[4] In these circumstances, we would allow the appeal and vary the quantum of the costs awarded to the respondent MTCC to the total amount of $25,000 and to the respondent Bell ExpressVu to the total amount of $3,300, in both cases inclusive of disbursements and Goods and Services Tax.

[5] The appellants do not seek costs against the respondent MTCC in respect of this appeal. They are entitled to costs of the appeal as against the respondent Bell ExpressVu in the amount of $1,000, inclusive of disbursements and Goods and Services Tax.

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”

“S. E. Lang J.A.”