1704604 Ontario Ltd. v. Pointes Protection Association et al., 2018 ONCA 853

Case Summary

This is a costs endorsement on appeal from a Superior Court of Justice order. The appellants appealed a decision and the Court of Appeal addressed the application of cost presumptions under the Court of Justice Act. The court held that the statutory cost presumptions in s. 137.1(7) and (8) do not apply on appeal, as the statutory language does not expressly refer to costs on appeals. However, the court exercised its discretion to apply the presumption for the motion costs and awarded the appellants costs on a full indemnity basis for the motion and on a partial indemnity basis for the appeal.

Court of Appeal for Ontario

Date: 2018-10-24 Docket: C62231

Judges: Doherty, Brown and Huscroft JJ.A.

Between

1704604 Ontario Ltd. Plaintiff (Respondent)

and

Pointes Protection Association, Peter Gagnon, Lou Simionetti, Patricia Grattan, Gay Gartshore, Rick Gartshore and Glen Stortini Defendants (Appellants)

Counsel

Mark Wiffen, for the appellants

J. Paul R. Cassan and Tim J. Harmar, for the respondent

Hearing

Heard: December 19, 2016, and June 27, 2017

On appeal from: the order of Justice Edward E. Gareau of the Superior Court of Justice, dated May 9, 2016, with reasons reported at 2016 ONSC 2884, 84 C.P.C. (7th) 298.

Costs Endorsement

[1] In our view the costs "presumptions" in s. 137.1(7) and (8) of the Court of Justice Act, R.S.O. 1990, c. C.43, do not apply on appeal. Those "presumptions" affect significant departures from the principles generally governing cost awards on appeals. It would take clear statutory language to warrant that departure. The language of the provisions, which does not expressly refer to costs on appeals, does not have that clarity.

[2] In holding that s. 137.1(7)(8) are not applicable on appeal we do not mean to say that the principles reflected in those provisions have no role in this court's exercise of its discretion with respect to costs in appeals from motions brought under s. 137.1. This court's discretion on costs is broad enough to reflect the justice of the individual case and where appropriate to have due regard to the policy underlying the cost regime created by s. 137.1(7)(8).

[3] In so far as the costs of the motion are concerned, we would apply the presumption in s. 137.1(7). The appellants should have their costs on a full indemnity basis fixed in the amount of $30,800, inclusive of taxes and disbursements. The appellants should have their costs of the appeal on a partial indemnity basis fixed at $17,147.57.

[4] There are no grounds for an order of costs as against the non-parties, Dr. Patricia Avery and Mr. Jeff Avery. No such order will be made.

"Doherty J.A."

"David Brown J.A."

"Grant Huscroft J.A."

1704604 Ontario Ltd. v. Pointes Protection Association et al., 2018 ONCA 853

Case Summary

Court of Appeal for Ontario

Between

Counsel

Hearing

Costs Endorsement

Cited By (2 cases)

The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 533

Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 243

Appeal History

Judges

Counsel

Parties

Areas of Law