Court of Appeal for Ontario

Date: 2019-07-17 Docket: C65765

Judges: Feldman, Roberts and Fairburn JJ.A.

Between

Eileen P. Newell Applicant (Respondent)

and

Lawrence Sax and Sax Lawyers Respondents (Appellants)

Counsel

J. David Sloan, for the appellants

Robert G. Tanner, for the respondent

Heard: March 5, 2019

On appeal from the order of Justice Morgan of the Superior Court of Justice, dated July 24, 2018.

Costs Endorsement

[1] The appellants submit that this court's $10,000 costs award in their favour on their successful appeal disposes of all costs in these proceedings, and that the respective costs awards granted to the respondent by the Assessment Officer in the amount of $8,000 and the application judge in the amount of $48,535.29 are therefore set aside.

[2] The respondent maintains that she remains entitled to both costs awards because she was ultimately successful in obtaining a substantial reduction in the appellants' original account of $187,044.40 to $100,000 on appeal.

[3] We agree that the respondent achieved substantial success as evidenced by the final result on appeal and was therefore justified in instigating the assessment and application. This success warrants an appropriate costs award that is reasonable and proportionate in the circumstances.

[4] With respect to the assessment, we agree that the $8,000 award does not reasonably reflect the respondent's ultimate success in having the appellants' account reduced to $100,000 from $187,044.40. As a result, we increase the respondent's costs on the assessment to $20,000.

[5] We are not persuaded, however, that the respondent is entitled to the costs award made by the application judge. In our view, the principal basis for the respondent's success on the application was the application judge's erroneous conclusion that the Assessment Officer evinced a reasonable apprehension of bias towards the respondent. While the respondent's application was warranted, her partial success should be reflected in a more modest costs award of $8,000.

[6] For these reasons, the respondent is entitled to her partial indemnity costs of the assessment in the amount of $20,000 and of the application in the amount of $8,000, both inclusive of disbursements and applicable taxes. We also order that the respondent may offset the $10,000 costs award granted to the appellants on the appeal against the $28,000 in costs owing to her by the appellants.

"K. Feldman J.A."

"L.B. Roberts J.A."

"Fairburn J.A."