COURT FILE NO.: 542/02
DATE: 20050722
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: SAVE THE ROUGE VALLEY SYSTEM INC. (MOVING PARTY) AND SIXTEENTH WARDEN LIMITED (RESPONDING PARTY)
BEFORE: Justice Edward Then
COUNSEL: Mr. Murray Klippenstein, for the Moving Party
Richard Storrey, for the Responding Party
C O S T S E N D O R S E M E N T
[1] In this matter leave to appeal was refused.
[2] The Respondent seeks costs in the amount of $10,746.01 on a substantial indemnity basis.
[3] The Applicant’s initial position is that there should be no order as to costs as the Applicant should not be penalized for a problem which the OMB subsequently repaired.
[4] Alternatively it is submitted that there is no justification for costs on a substantial indemnity basis. The more appropriate figure on a partial indemnity basis it is submitted is $7,385.14.
[5] The Respondent submits that the $7,385.14 be further reduced to $5,029.00 as the preparation time is excessive.
[6] In my view, this is an appropriate case for costs to be awarded as the Respondent sought leave notwithstanding this is not a matter of public importance.
[7] I have read and considered the submissions of the parties, and have taken into account the factors set out in Rule 57.01 of the Rules of Civil Procedure and I have also considered the principles in Zesta Engineering Ltd., [2002] O.J. No. 4495 (Ont. C.A.) recently affirmed in Boucher v. Public Accountants Council for the Province, [2004] O.J. No. 2634 that costs must be reasonable and fair to the losing party whose reasonable expectations must be taken into account.
[8] Having regard to all the circumstances, I do not think a substantial indemnity scale is warranted nor do I think that the preparation time is excessive so as to warrant interference. In my view, it is fair and reasonable in the circumstances of this case to award costs on a partial indemnity scale in the amount of $7,500.00 all inclusive.
Then J.
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