Court of Appeal for Ontario

Date: 2017-11-24 Docket: C62247

Judges: Strathy C.J.O., Cronk and Pepall JJ.A.

Between

Victoria Chechui Applicant (Respondent in appeal)

and

Ian Jamieson Nieman Respondent (Appellant)

Counsel

For the Appellant: Earl A. Cherniak, Q.C., Zohar R. Levy and Valois P. Ambrosino

For the Respondent: Harold Niman and Chloe van Wirdum

Heard: May 8, 2017

Appeal Information

On appeal from the orders of Justice Kenneth G. Hood of the Superior Court of Justice, dated May 12, 2016 and July 25, 2016, with reasons reported at 2016 ONSC 1905, 18 E.T.R. (4th) 329 and 2016 ONSC 4667, 18 E.T.R. (4th) 348.

Costs Endorsement

[1] This court released its decision in this appeal on August 28, 2017. In that decision, the court awarded the appellant, Ian Jamieson Nieman, part of his agreed costs of the appeal, fixed in the total amount of $12,500, inclusive of disbursements and all applicable taxes. Further, the court invited the parties to make written submissions regarding the $180,000 costs award made by the application judge in favour of the respondent, Victoria Chechui: Chechui v. Nieman, 2017 ONCA 669.

[2] The court has now received and reviewed the parties' submissions concerning that costs award.

[3] The appellant overstates his success before this court. Contrary to his contention, he achieved only partial success on the appeal. In light of the disputed issues on appeal and this court's rulings on those issues, we conclude that the respondent remains entitled to her costs of the application although some reduction in the quantum of those costs is appropriate.

[4] Having considered the parties' submissions, the principles governing the awarding of costs, the matters at issue on the application, the application judge's findings concerning the parties' conduct of the litigation, and the outcome on appeal, we conclude that a reduction of 25 per cent in the quantum of the costs of the application awarded to the respondent is both fair and justified. This results in a revised award of costs of the application to the respondent in the sum of $135,000 and we so order.

[5] The appellant also submits that he is entitled to his costs of his motion for a stay of the application judge's decision pending appeal, in the amount of $31,881.47.

[6] We disagree. First, the costs claimed by the appellant are almost three times the amount of the respondent's costs for defending the same motion. In our view, they are excessive.

[7] Second, the appellant's motion was not limited to the requested stay order. He also sought a contempt order and other relief, including financial penalties, against the respondent. Eventually, his motion and the respondent's cross-motion (for dismissal of the appellant's motion) were resolved on consent.

[8] In these circumstances, we agree with the respondent that no award of costs of the motion is appropriate or warranted.

[9] In the result, therefore, the respondent's award of costs for her costs of the application are reduced to the total sum of $135,000. We make no award of costs for the stay/contempt motion.

"G.R. Strathy C.J.O."

"E.A. Cronk J.A."

"S.E. Pepall J.A."