Court of Appeal for Ontario

Citation: 7550111 Canada Inc. v. Charles, 2020 ONCA 505

Date: 2020-08-07

Docket: C67479

Before: Rouleau, van Rensburg and Roberts JJ.A.

Between

7550111 Canada Inc.

Plaintiff (Respondent)

and

Natalie Charles

Defendant (Appellant)

Counsel: Kevin Sherkin, for the appellant Doug Bourassa, for the respondent

Heard: in writing

On appeal from the judgment of Justice Dale F. Fitzpatrick of the Superior Court of Justice dated August 29, 2019.

COSTS ENDORSEMENT

[1] In our reasons for judgment, we invited the parties to make written submissions concerning the quantum of the judgment and the scale and quantum of the appeal costs, if the parties could not agree on these issues.

[2] The parties have agreed that the correct amount of the judgment as at August 29, 2019 is $164,363.76. However, the parties have not achieved consensus concerning the disposition of the appeal costs. The respondent, as the successful party on the appeal, claims its costs on a full indemnity basis in the amount of $20,866.02. The appellant has not filed costs submissions although granted an extension until July 31, 2020 to do so.

[3] According to s. 8 of the standard charge terms that formed part of the subject mortgage, the respondent is entitled to its full indemnity costs that it has incurred to recover the amounts owing under the mortgage in issue. These include appeal costs. We see no basis to depart from the parties’ contractual arrangement.

[4] Notwithstanding the contractually agreed upon scale of costs, the quantum of the respondent’s costs must be fair, reasonable and proportionate having regard to the circumstances of the case: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 391, [2004] O.J. No. 2634 (C.A.), at paras. 24 to 26.

[5] In our view, the circumstances of the case justify the amount of costs requested by the respondent. While there has never been a serious issue that the claimed advances were made to the appellant, the respondent was obliged to respond to the other myriad factual and legal issues put forward by the appellant, including the repeated and unfounded allegations of fraud and the new issue of criminal interest rate that was raised for the first time on appeal.

[6] As a result, the fair, reasonable and proportionate amount of appeal costs that the appellant must pay to the respondent is $20,866.02, inclusive of disbursements and applicable interest.

“Paul Rouleau J.A.”

“K. van Rensburg J.A.”

“L.B. Roberts J.A.”