Court File and Parties

CITATION: Rego v. Pearsall, 2021 ONSC 6624

DIVISIONAL COURT FILE NO.: 736/21-ML

DATE: 20211008

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: debbie rego, Applicant (Respondent in Appeal)

AND:

brad pearsall, Respondent (Appellant in Appeal)

BEFORE: Aston, D.L. Corbett and Nishikawa JJ.

COUNSEL: Peter J. Doucet, for the Applicant (Respondent in Appeal)

Kristen Normandin and Jared Teitel, for the Respondent (Appellant in Appeal)

HEARD: in writing

ENDORSEMENT

[1] The motion for leave to appeal the order of Justice Jain dated August 30, 2021 (unreported) is dismissed.

[2] By case management direction dated September 20, 2021, Favreau J. directed as follows (at para. 10):

The parties are also to advise the court of any agreement on costs or upload their costs outlines to CaseLines at least one day before the hearing.

[3] The parties did not upload an agreement as to costs or costs outlines as directed.

[4] In the final paragraph of her factum, the respondent “respectfully requests that this Honourable Court review her Offer to Settle this Motion for Leave to Appeal prior to awarding costs.”

[5] It is not open to parties to disregard case management directions, even “respectfully”. If a party wishes a variation in a case management direction, that variation must be sought prospectively. Our case management system facilitates timely and efficient disposition of motions for leave to appeal, both for the parties and for the court. It is not efficient for leave panels to reconstitute themselves a second time to consider costs issues. This practice is in keeping with the practice as to costs of motions for leave to appeal in the Ontario Court of Appeal and the Supreme Court of Canada.

[6] Where parties fail to provide their costs materials to the court as directed, the court will usually exercise its discretion to award no costs or to award a standard amount of costs that, in the opinion of the court, is appropriate for the matter at hand, generally $2,500 or $5,000, depending on the nature of the case. It will be only in exceptional circumstances that the court will direct or permit further materials on costs after the decision has been rendered on the merits of the leave motion.

[7] In this case we decline to hear consider further materials respecting costs and order that costs of the motion for leave to appeal of $2,500, inclusive, be paid by the moving party to the responding party within thirty days. We have fixed the amount on the basis of our assessment of the complexity of the motion and the work required by the respondent for this motion – we have not penalized the respondent for not following the case management direction because we realize that the bar is still adjusting to changes in practice at the divisional Court and we do not doubt that the request to make further costs submissions was made in court faith.

Aston J.

D.L. Corbett J.

Nishikawa J.

Released: October 8, 2021