Court of Appeal for Ontario

Date: 2018-10-24 Docket: C63103

Judges: Doherty, Brown and Huscroft JJ.A.

Between

Howard Platnick Plaintiff (Appellant)

and

Maia Bent and Lerners LLP Defendants (Respondents)

Counsel

Timothy S. B. Danson and Marjan Delavar, for the appellant

Howard Winkler and Eryn Pond, for the respondent, Maia Bent

Terrence J. O'Sullivan and Andrew Winton, for the respondent, Lerners LLP

Heard: June 28, 2017

On appeal from: the order of Justice Sean F. Dunphy of the Superior Court of Justice, dated December 1, 2016, with reasons reported at 2016 ONSC 7340, 136 O.R. (3d) 339, and from the costs order, dated January 24, 2017, with reasons reported at 2017 ONSC 585.

Costs Endorsement

A. Costs of the Motion

[1] Having reviewed the written submissions provided by counsel we order that there should be no costs on the motion before Dunphy J. We make that order for three reasons. First, the "presumption" in s. 137.1(8) of the Courts of Justice Act, R.S.O. 1990, c. C.43, favors a "no costs" order when the moving party is unsuccessful on the motion.

[2] Second, a significant part of the proceedings on the motion involved meritless constitutional and procedural arguments brought by the appellant. Whatever costs the appellant might have received in light of his success on the s. 137.1 motion, would have been substantially offset by costs payable to the respondents in respect of the other unsuccessful and meritless motions brought by the appellant.

[3] Third, it is impossible on the material filed before us to distinguish between the costs attributable to the appellant's defence of the s. 137.1 motion and the costs attributable to the various other motions brought by the appellant.

[4] We considered requesting bills of costs in respect of the motion with a view to attributing costs to either the s. 137.1 motion, or the various other motions brought by the appellant. However in the end we are satisfied that request would only prolong the resolution of the proceeding underlying this motion. Presumably this matter will proceed to trial. The trial judge will have full authority to deal with all cost issues relating to the trial proceedings. Some of the costs already incurred may be recoverable as trial costs.

B. Costs of the Appeal

[5] We would award costs of the appeal to the appellant on a partial indemnity basis. Those costs must however be reduced to reflect time spent and expenses incurred in respect of constitutional and procedural arguments raised by the appellant that had no merit. In our view a proper reflection of both the outcome of the appeal and the unnecessary time and expense generated by some of the appellant's submissions is an order of costs to the appellant in the amount of $10,000, as against the respondent, Bent, and $10,000, as against Lerners LLP. Those figures include disbursements and relevant taxes.

Doherty J.A.

David Brown J.A.

Grant Huscroft J.A.