Court of Appeal for Ontario

Date: 20241029 Docket: COA-23-CV-1047

Between:

Dee-Anne Hamer and Roo Roo Cat Rescue Plaintiffs/Responding Parties (Appellants)

And:

Jane Doe also known as Tina Melo, J.C. Price, Susan Namedoff* and Nicole Accord* Defendants/Moving Parties* (Respondents*)

Before: Roberts, Zarnett and Favreau JJ.A.

Counsel:

Sara J. Erskine and Adrienne Zaya, for the appellants Charlotté Calon and Braxton Murphy, for the respondents

Heard: July 4, 2024

On appeal from the order of Justice Loretta P. Merritt of the Superior Court of Justice, dated September 22, 2023, with reasons reported at 2023 ONSC 4837.

Costs Endorsement

[1] On October 3, 2024, we allowed the appellants’ appeal with costs in the agreed upon amount of $14,644.46. We invited the parties to make brief written submissions if they could not agree on the disposition of the costs of the motion below. They could not. We have received and reviewed their respective submissions.

[2] In sum, the appellants submit that they are entitled to their costs of the motion in the amount of $20,098.48. The respondents challenge the appellants’ entitlement to any costs. In the alternative, as the action is continuing, they submit that costs should be to the successful party in the cause.

[3] The disposition of costs in relation to the dismissal of a motion brought under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 requires the consideration of s. 137.1(8):

If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.

[4] In our view, the appropriate disposition in this case is to fix the motion costs in the amount of $20,098.48 and award them to the appellants if they are successful in the cause.

[5] The amount sought by the appellants is fair and proportionate and should have been within the respondents’ reasonable contemplation if they were unsuccessful on their motion. While we cannot conclude that the respondents’ motion was frivolous, as explained in our reasons allowing the appeal, it should properly have been viewed as having a low prospect of success in view of the criteria under s. 137.1(4).

[6] Ordering the costs to the appellants in the cause reflects the particular circumstances of this case. While the appellants satisfied the criteria under the preliminary screening mechanism of s. 137.1(4), their claim for damages is very much in dispute. As a result, if they are successful in their action, they should be entitled to the costs of the respondents’ motion.

Disposition

[7] For these reasons, we fix the appellants’ motion costs in the amount of $20,098.48 and order them payable to the appellants by the respondents if the appellants are successful in the cause.

“L.B. Roberts J.A.”

“B. Zarnett J.A.”

“L. Favreau J.A.”