Court File and Parties
COURT FILE NOS: 670/03 and 726/03
DATE: 20060524
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O'DRISCOLL, GRAVELY AND POWER JJ.
B E T W E E N:
PHYLLIS WORTHMAN Plaintiff/Respondent
- and -
ASSESSMED INC. and DR. PAUL GRANT Defendants/Appellants
ENDORSEMENT AS TO COSTS OF THE APPEAL
O'DRISCOLL J.:
[1] The majority and the minority reasons, dated March 9, 2006, each asked for written submissions in the event that counsel were unable to agree as to costs on the application for leave to appeal before MacFarland J. and on the appeal to the Divisional Court. Counsel were unable to agree. Counsel for the Respondent/Plaintiff filed a draft Bill of Costs with submissions. Counsel for the Appellants/Defendants filed a written response. Counsel for the Respondent then filed reply submissions.
[2] Our task is to fix costs and in doing so to arrive at an amount that is fair and reasonable to the unsuccessful party, according to the principles set out in:
- Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43,
- Rule 57.01 of the Rules of Civil Procedure, and
- Boucher et al. v. Public Accountants Council for the Province of Ontario et al. (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.).
[3] On the application for leave to appeal, the Respondent/Plaintiff claims $5,452.30. In our view, looking at the record and keeping in mind MacFarland J.'s reasons as to the length of the leave application, we are of the view that the proper fixed costs award on the application for leave to appeal should be $2,000.00, all-inclusive.
[4] As for the appeal, counsel for Ms. Worthman claims:
(a) Preparation - $41,122.00 G.S.T. $ 2,878.54 $44,000.54
(b) Counsel fee on appeal - $ 2,000.00 G.S.T. $ 140.00 $ 2,140.00
Total fees with G.S.T. - $46,140.54
(c) Taxable Disbursements - $ 1,408.21 G.S.T. $ 98.57 $ 1,506.78
[5] It will be remembered that the appeal took less than one day. On the motion before Matlow J., which had four and one half (4.5) days of cross-examination, the costs were fixed by Matlow J. at $27,000.
[6] Taking into account all the submissions, including the reduction factor of the "novelty" argument, we are all of the view that the ends of justice would be served by fixing the costs of the Respondent/Plaintiff as follows:
(a) fees, including counsel fees for the motion for leave to appeal at $2,000.00, all-inclusive (b) the costs on the appeal at $15,000.00, all-inclusive.
[7] The disbursements of the Respondent/Plaintiff were not challenged and are fixed at $1,439.36 plus G.S.T., where applicable.
O'Driscoll J.
Gravely J.
Power J.
Released: