Ontario Superior Court of Justice – Divisional Court

Ellis-Don Construction Ltd. v. 1046498 Ontario Inc.

Date: 2002-08-12

Counsel: Robert W. Kerkmann, for the plaintiff; M. Kate Stephenson, for the defendants.

(189/01)

Endorsement

[1] Spence, J.: The submissions as to costs are those set out in the plaintiff's costs submissions of May 31, 2001 and the defendants costs submissions of June 6, 2001. I advised counsel by endorsement dated June 27, 2001 that I did not have a copy of the plaintiff's submission. The plaintiff sent a copy which was received June 29, 2001. The copy was overlooked. I regret the inconvenience to the parties. There were no further communications until the letter of July 23, 2002 from plaintiff's counsel requesting a decision. I was away from the court until August 12.

[2] Plaintiff requests solicitor and client costs on the appeal on the basis that the motions court judge dismissed the summary judgment motion and awarded solicitor/client costs and on the motion for leave to appeal the plaintiff succeeded, so solicitor and client costs on that motion should follow as well, on the basis that this was the course of action followed by the Court of Appeal in Smyth v. Waterfall (2000), 136 O.A.C. 348; 50 O.R.(3d) 481 (C.A.), at 490. This fairly characterizes the result in that case. The defendants have made no submissions about the case except as noted below.

[3] The defendants say that the motion for leave to appeal was not brought under rule 20.06(1) so the costs sanction in that rule should not be regarded as applicable. The Smyth case is satisfactory authority to the contrary.

[4] In Smyth, the Court of Appeal said that the onus is on the unsuccessful party to show that the making of the motion was reasonable at the time it was made. The defendants say that the leave to appeal motion was reasonably brought because Juriansz, J., failed to address the issue involving the pleading of specific performance. However in my endorsement of May 18, 2001, I concluded that the motion should be dismissed for reasons that I considered made it unnecessary for the issue as to specific performance to be addressed, so that issue cannot be regarded as a basis for considering the motion for leave to be reasonable.

[5] Accordingly the defendant's submissions do not satisfy the test in Smyth, so the plaintiffs should have costs on the solicitor and client basis.

[6] The defendants made no submission as to quantum on a solicitor and client basis or against the court fixing costs. The plaintiffs' submission as to quantum is reasonable. Costs are fixed at the requested amount of $4,742.00.

Order accordingly.