ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 08-CV-41591
Date: 2012/11/14
Between:
Merovitz-Potechin LLP Applicant – and – Janice Middleton Respondent
Counsel:
John J. Cardill, for the Applicant
John W. Montgomery, for the Respondent
Heard: (By written submission)
DECISION ON COSTS
McNAMARA J.
[ 1 ] I have now had the opportunity to consider the Applicant’s written submissions on costs. The Respondent filed no materials.
[ 2 ] In my decision released on March 21, 2011, and dealing specifically with the issue of costs, I indicated that if the parties were unable to agree on costs they might make brief written submissions. As indicated above, the Applicant did file written submissions in late August of this year, to which the Respondent did not reply.
[ 3 ] The Applicant seeks costs not only with relation to the matter I heard, but also costs of the original assessment before Assessment Officer Culleton.
[ 4 ] Dealing firstly with that submission, a review of the Officer’s decision dated June 25, 2009 indicates that counsel were given until July 24 of that year to file written argument as to the costs of that hearing. I can only assume that that never occurred and as such the Assessment Officer made no order as to costs. Although I do not have the full materials that were before me on the motion argued on February 15, 2011, I do not recall the issue of costs of the original hearing being argued at that time. My view in that regard is reinforced by the fact that my invitation to counsel to make submissions as to costs related to “costs of this motion”.
[ 5 ] I decline to deal with the issue of costs of the original hearing at this stage. Counsel, of course, may remit the matter to the Assessment Officer to whom submissions should have been made in the first place.
[ 6 ] Moving on to the costs of the motion before me, I am persuaded that the Applicants are entitled to their costs. In exercising my discretion under s. 131 of the Courts of Justice Act , R.S.O. 1990, c. C.43 to award costs, I must take into account the factors set forth in rule 57.01(1) of the Rules of Civil Procedure . In fixing an appropriate quantum I must be guided by the overriding principle of reasonableness and fairness, and that in deciding what is fair and reasonable the expectation of the parties is a relevant factor. Having considered the matter as a whole in the context of the factors under the rule, I am of the view that the costs as sought on a partial indemnity basis in the amount of $7,992.00 plus HST and disbursements, would be fair, reasonable and proportionate.
The Hon. Mr. Justice James McNamara
Released: November 14, 2012
COURT FILE NO.: 08-CV-41591
DATE: 2012/11/14
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Merovitz-Potechin LLP Applicant – and – Janice Middleton Respondent DECISION ON COSTS McNamara J.
Released: November 14, 2012