Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200408 DOCKET: C66432

Watt, Hourigan and Trotter JJ.A.

BETWEEN

Jason Michael Thistle Plaintiff (Respondent)

and

James Schumilas, Jr. , WCS Financial Services, Cinaber Financial Inc. and Bridgeforce Financial Group Inc. Defendants (Appellant)

Counsel: Marie Sydney, for the appellant Sean Zeitz, for the respondent

Heard: In writing

On appeal from the order of Justice Catrina D. Braid of the Superior Court of Justice, dated December 21, 2018.

Costs Endorsement

[1] The appellant was successful on his appeal and was awarded costs of the appeal in the all-inclusive sum of $10,000. This court also ordered that the appellant is entitled to his costs of the motion and cross-motion in the Superior Court. Further, we ordered that, to the extent that there are costs of the action below other than the costs of the motion and cross-motion, the appellant is prima facie entitled to those costs given that the respondent’s action has been dismissed.

[2] We have been advised that the parties cannot agree on the costs of the motion and cross motion or the other costs of the action. They have filed written submissions on these issues.

[3] The appellant seeks its partial indemnity costs of the motion and cross-motion in the amount of $36,889, and its other costs of the action on a partial indemnity basis in the amount of $71,614. The total amount claimed is $108, 503.

[4] The respondent submits that the appellant should receive no indemnity for costs incurred after the close of pleadings because it waited for several years to bring its summary judgment motion to dismiss the action. He argues that this delay constitutes special circumstances that disentitle the appellant from recovering his costs after the close of pleadings.

[5] We are not satisfied that special circumstances have been established. There was delay in bringing the motion, but the respondent has been aware of the appellant’s position that he does not have standing to bring the action since discoveries. Neither party took steps to deal with this issue expeditiously or in the least expensive way possible in the circumstances. The costs consequences of this should not be borne solely by the appellant.

[6] The appellant, as the successful party, is entitled to his costs below. However, we find that the total amount claimed is excessive, given the straightforward nature of the case and the amounts in issue. Therefore, we order that the respondent pay the appellant his costs of the action, including his costs of the motion and cross-motion, in the all-inclusive sum of $75,000.

“David Watt J.A.”

“C.W. Hourigan J.A.”

“Gary Trotter J.A.”