Court File and Parties

COURT FILE NO.: CV-10-404985
DATE: 20120313
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SHAWMUT WOODWORKING & SUPPLY INC. o/a SHAWMUT DESIGN AND CONSTRUCTION, Plaintiff (Respondent)

AND:

SOHEIL MOSUN LIMITED, Defendant (Appellant)

BEFORE: B. P. O’Marra J.

COUNSEL:
Mark Wiffen , for the Plaintiff (Respondent)

Trent Morris , for the Defendant (Appellant)

HEARD: March 12, 2012

ENDORSEMENT

[ 1 ] This is an appeal from the Order of Master Hawkins dated December 29, 2011. That motion related to the late delivery of an Affidavit of Documents but cannot be viewed in isolation. The history of the matter included the following:

(a) Appellant noted in default (later set aside);

(b) Appellant failed to pay two costs orders on time; and

(c) Appellant failed to respond to a Demand for Particulars on time.

[ 2 ] The Master ordered the following:

(1) delivery by the Respondent of certain productions at no cost to the Plaintiff;

(2) discovery of a named individual within a certain time;

(3) substantial indemnity costs fixed at $3,744.10;

(4) Plaintiff may move without notice to strike defence pleadings in default; and

(5) approval of draft order dispensed with.

[ 3 ] On this appeal, counsel confirms that items #1 and 2 have been complied with. Counsel for the Respondent advises he will not apply to strike the defence pleadings as a result of that compliance.

[ 4 ] This Appeal relates to the following:

(1) the lack of reasons provided by the Master;

(2) the order for costs on a substantial indemnity scale; and

(3) the order dispensing with the approval of the order by the Appellant.

[ 5 ] All of the items set out in the Order are procedural Case Management issues routinely dealt with by Masters by brief endorsements. The exercise of discretion by a Master on such matters deserves significant appellate deference.

Zeitoun v. Economical Insurance Group (2008), 91 O.R. (3d) 131 (Div. Ct.) at para 41; aff’d 2009 ONCA 415.

[ 6 ] The Order of the Master must be considered in the context of the entire record before him. On a procedural motion such as this the endorsement itself may be sufficient as indicative of the Master’s response to the litigants’ positions.

See: Seip & Associates Inc. v. Emmanuel Village Management Inc. at para. 16.

[ 7 ] The Respondent submits that an appeal of a costs award requires leave.

Courts of Justice Act, s. 133(b)

[ 8 ] No leave has been sought or obtained as to the level of costs awarded. The Appellant concedes that the Respondent was entitled to partial indemnity costs as of December 21, 2011 (being $1,800.00).

[ 9 ] The order dispensing with approval of the draft order was part of an overall approach to move this matter along. It was within the discretion of the Master to make.

[ 10 ] It has not been shown that the Master made an error of law or exercised his discretion on wrong principles or misapprehended the evidence before him such that there was palpable and overriding error.

[ 11 ] In the particular circumstances, I would not grant leave to appeal the order as to level of costs. If leave had been granted, I would not interfere with the exercise of discretion as to leave of costs.

Result

[ 12 ] Appeal is dismissed. Costs fixed at $1,500 all inclusive. Ordered payable by the Appellant with 30 days.

B. P. O’Marra

Date: March 13, 2012