DATE: 2006-09-19

DOCKET: C43983

COURT OF APPEAL FOR ONTARIO

RE: Brian Lawrence (Applicant (Appellant)) – and – The Toronto Humane Society (Respondent (Respondent))

BEFORE: Simmons, Cronk and Rouleau JJ.A.

COUNSEL:

Sean Dewart for the appellant

Pellegrino Capone for the respondent

HEARD: February 10, 2006

ENDORSEMENT ON COSTS

[1] This court released its reasons for judgment in this appeal on June 16, 2006. The appellant was successful on appeal and was awarded his costs of the appeal on a partial indemnity basis, fixed in the total amount of $8,500, and his costs of the original application, fixed in the total amount of $18,000, both if sought by the appellant.

[2] After the release of our reasons for judgment, the respondent sought leave of the panel to make further submissions regarding the quantum of the proposed costs award concerning the proceeding before the application judge. The requested leave was granted.

[3] We have now received and reviewed supplementary written submissions from the parties concerning this costs issue, including the appellant’s detailed bill of costs regarding the application, in the total amount of $20,814.16 on the partial indemnity scale, together with the respondent’s submissions thereon.

[4] Subject to two matters, which we describe in para. 7 of these reasons, we are satisfied that the amount of the original costs award in favour of the appellant, in the total amount of $18,000, reflects a fair and reasonable amount that should be paid by the respondent in respect of the application.

[5] We note that, in the proceeding before the application judge, the respondent sought costs in the approximate sum of $41,000, on the substantial indemnity scale, for its costs in successfully defending the application.

[6] The application judge considered that the sum of $18,000 was an appropriate amount to be paid by the appellant, the unsuccessful party before the application judge. This amount is substantially less than the amount of costs that the respondent sought to recover on the application, on either a partial or substantial indemnity scale. It is also less than the partial indemnity costs actually incurred by the appellant on the application.

[7] However, the appellant’s bill of costs as filed with this court includes a claim for fees in respect of a refusals motion that the parties agreed would attract no costs. It also includes counsel fees for the attendance of two counsel on the application. In our view, fairness requires that the costs to be awarded with respect to the application be reduced by $2,015 on account of these two items.

[8] Accordingly, net of this reduction, costs are awarded to the appellant in respect of the application in the total amount of $15,985 and para. 107 of our reasons for judgment dated June 16, 2006 is amended accordingly. We award no additional costs on account of the written costs submissions received from the parties.

"Janet Simmons J.A."

"E.A. Cronk J.A."

"Paul Rouleau J.A."