Citation and Court Information
CITATION: ALS Society of Essex v. City of Windsor, 2019 ONSC 1824
DIVISIONAL COURT FILE NO.: 34/17
DATE: 20190403
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
HARPER, MYERS, NEWTON, JJ.
BETWEEN:
AMYOTROPHIC LATERAL SCLEROSIS SOCIETY OF ESSEX COUNTY Plaintiff/Appellant
– and –
THE CORPORATION OF THE CITY OF WINDSOR Defendant/Respondent
Brian N. Radnoff and Alex R. Sharpe, Lawyers for the Plaintiffs/Appellants
Brendan van Niejenhuis and Fredrick R. Schumann, Lawyers for the Defendants/Respondents
DIVISIONAL COURT FILE NO.: CV-08-12005 CP/17
BETWEEN:
BELLE RIVER DISTRICT MINOR HOCKEY ASSOCIATION INC. and ESSEX COUNTY DANCERS INCORPORATED Plaintiffs/Appellants
– and –
THE CORPORATION OF THE TOWN OF TECUMSEH Defendant/Respondent
IN-WRITING
REASONS FOR COSTS
MYERS J.:
[1] By order dated April 11, 2018, with reasons reported at 2018 ONSC 2350, the plaintiffs succeeded in their appeal. The court added a term to the order below confirming the applicability of the deemed undertaking under Rule 30.1 to certain information disclosed by the plaintiffs’ counsel to the defendants’ counsel.
[2] The plaintiffs seek their costs of the appeal including the motion for leave to appeal.
[3] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.
[4] The plaintiffs seek partial indemnity for the fees and disbursements that they incurred in bringing this appeal including the leave motion. In light of their success, they are entitled to such an order.
[5] The hours and rates set out in the plaintiffs’ Costs Outline are reasonable on their own and in comparison with the costs of the defendants. Therefore, the defendants shall pay forthwith to the plaintiffs their costs of the appeal, including the leave motion, fixed in the amount of $13,202 all-inclusive.
[6] As to the costs below, the plaintiffs provided their factum from that motion. They did seek the declaration that we gave although they also sought a more direct order prohibiting disclosure of opt-outs that the judge below declined to give. The judge below ordered the plaintiffs to pay costs of $16,686.33 to the defendants on the basis that the defendants succeeded on the motion. As we have determined that the court ought to have ordered that the deemed undertaking applied as sought by the plaintiffs, each side should have won one issue and lost one issue below. Success was divided.
[7] In our view, weighing the proper outcome in the mix, there should be no costs payable on the initial hearing below. Accordingly, the costs order made by the judge below is set aside. No order is made in its place.
Myers J.
I agree _______________________________
Harper J.
I agree _______________________________
Newton J.
Date of Decision: April 26, 2018
Release Date: April , 2019[^1]
CITATION: ALS Society of Essex v. City of Windsor, 2019 ONSC 1824
DIVISIONAL COURT FILE NO.: 34/17
DATE: 20190403
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HARPER, MYERS, NEWTON, JJ.
BETWEEN:
AMYOTROPHIC LATERAL SCLEROSIS SOCIETY OF ESSEX COUNTY
Plaintiff/Appellant
– and –
THE CORPORATION OF THE CITY OF WINDSOR
Defendant/Respondent
DIVISIONAL COURT FILE NO.: CV-08-12005 CP/17
BELLE RIVER DISTRICT MINOR HOCKEY ASSOCIATION INC. and ESSEX COUNTY DANCERS INCORPORATED
Plaintiffs/Appellants
– and –
THE CORPORATION OF THE TOWN OF TECUMSEH
Defendant/Respondent
REASONS FOR COSTS
Released: April , 2019
[^1]: The release of this decision was delayed due to administrative error within the court.