Court File and Parties

Court of Appeal for Ontario Date: 20221209 Docket: C70126

Simmons, van Rensburg and Favreau JJ.A.

Between: MBM Intellectual Property Law LLP Applicant (Respondent)

And: Kevin Drizen Respondent (Appellant)

Counsel: Kevin Drizen, acting in person Daniel Lanfranconi, for the respondent

Heard: in writing

Costs Endorsement

[1] Following the release of this court’s Reasons for Decision on November 10, 2022, the court received the parties’ submissions on costs.

[2] MBM Intellectual Property Law LLP (“MBM”), which was the successful party on appeal, seeks costs on a substantial indemnity basis in the amount of $76,592.81, and, alternatively, on a partial indemnity basis in the amount of $51,061.88.

[3] We see no reason for ordering costs on a substantial indemnity basis in this case. MBM’s justification for seeking costs on a substantial indemnity basis focus on Mr. Drizen’s conduct in the proceedings below rather than in this court. While Mr. Drizen’s appeal may have been unmeritorious, this on its own is not a sufficient basis for ordering costs on a substantial indemnity basis.

[4] Moreover, the costs sought by MBM are grossly disproportionate to the amount at issue in this matter and the issues on appeal. In the underlying proceedings, MBM seeks payment of its legal fees of approximately $50,000. The costs it seeks on appeal exceed that amount. In addition, the primary issue on appeal was whether the application judge made a palpable and overriding error in finding that Mr. Drizen, rather than his corporation, was responsible for paying legal fees. This was not a complex issue.

[5] We note that the bill of costs submitted by MBM appears to claim for over 250 hours of work. It is not clear whether the fees claimed are limited to the appeal or include the proceedings below. The application judge below has already awarded costs to MBM for the application. The only costs recoverable here are the costs of the appeal.

[6] In our view, costs in the amount of $7,500, inclusive of HST and disbursements, are reasonable in the circumstances of this appeal. Accordingly, the costs are fixed at $7,500, payable by Mr. Drizen to MBM.

“Janet Simmons J.A.” “K. van Rensburg J.A.” “L. Favreau J.A.”