Court of Appeal for Ontario

Date: 2017-12-20 Docket: C61367

Judges: Cronk, Rouleau and Huscroft JJ.A.

Between

1079268 Ontario Inc. Applicant (Respondent)

and

GoodLife Fitness Centres Inc. Respondent (Appellant)

Counsel

For the Appellant: John K. Downing and Brian Whitwham

For the Respondent: Kevin D. Sherkin, Elizabeth Barrass and Carmine Scalzi

Heard

September 19, 2016

On Appeal

On appeal from the order of Justice Ruth E. Mesbur of the Superior Court of Justice, dated October 5, 2015, with reasons reported at 2015 ONSC 6772.

Costs Endorsement

[1] On January 10, 2017, this court released its decision on this appeal, setting aside the order of Mesbur J. dated October 5, 2015. The parties were invited to make written submissions on costs. However, the written submissions received addressed only the costs of the appeal and did not provide the parties' positions on the costs of the application below.

[2] The appellant was awarded its costs of the appeal, fixed by agreement of the parties at $20,000, inclusive of taxes and disbursements. The costs award on the application below was reversed.

[3] The parties have been unable to agree on the costs to be awarded on the application below.

[4] The parties primarily contested two issues on the application. Success on the application was divided. As a result, in her endorsement released November 2, 2015, the application judge reduced the respondent's costs from the agreed amount of $42,500 to $30,000, stating, at para. 112:

The parties agreed the appropriate amount of costs for the successful party on the application would be $42,500 inclusive of disbursements and taxes. Since the applicant did not succeed on its claim for rectification, it enjoyed only partial success. The applicant will therefore have its costs fixed at $30,000 all inclusive.

[5] The parties disagree on whether this court's decision to reverse the costs award on the application requires the respondent to pay to the appellant $30,000 or $42,500 for the application below.

[6] Given that the appellant succeeded on both issues argued at the application, the appellant is entitled to the costs of the application agreed upon by the parties before the application judge. The appropriate costs award on the application is the agreed amount of $42,500.

[7] Accordingly, paragraph 45 of this court's January 10, 2017 reasons is amended to read as follows:

GoodLife is entitled to its costs of the appeal, fixed by agreement of the parties at $20,000, inclusive of taxes and disbursements. GoodLife is also entitled to costs of the application in the originally agreed amount of $42,500, inclusive of taxes and disbursements.

E.A. Cronk J.A.

Paul Rouleau J.A.

Grant Huscroft J.A.