SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-1329

DATE: 20130318

RE: Resort Country Realty Inc. Plaintiff (Responding Party)

AND:

Tanglewood (Sierra Homes) Inc, Defendant (Moving Party)

BEFORE: THE HON. MADAM JUSTICE M.P. EBERHARD

COUNSEL:
J. Murphy, Counsel for the Plaintiff

M. Simaan, Counsel for the Defendant

HEARD: Motion heard February 19, 2013

ENDORSEMENT

[1] The Respondent moved for leave to appeal the order of McCarthy J. Leave was not granted. As to costs, I wrote:

17 If the parties cannot agree, the Plaintiff may seek costs by 2 pages in writing and a bill of costs delivered to the judicial secretary in Barrie in writing by March 1, the Defendant a 2 page response by March 8 and similar reply by March 12, all in 2013.

[2] I have reviewed the written submissions.

[3] The Respondent submitted that it would be unjust to award costs at this stage in the proceeding, citing my remark that “There is no prejudice that cannot be remedied by … costs for the steps generated by the plaintiff blundering into the Small Claims Court.”

[4] What I said in its entirety was:

13 There is no prejudice that cannot be remedied by applying the same principles to bring the counterclaim back before the court or by costs for the steps generated by the plaintiff blundering into the Small Claims Court.

14 Absent the order of McCarthy J. there would persist a sense that the blunders of the Plaintiff, at the pleadings stage, are being taken advantage of to prevent the merits of the claim being heard. I was drawn, as was McCarthy J. to the observation in the Supreme Court of Canada in Danyluk that

Whatever the appellant’s various procedural mistakes in this case, the stubborn fact remains that her claim to commissions has simply never been properly considered and adjudicated.

[5] I am not persuaded that costs should not be awarded at this stage in the proceeding. Each litigation event attracts a costs consideration. Once the merits are determined or resolved, the extra costs generated by the steps made necessary by the Plaintiff’s “blundering” can be considered to enhance or moderate the final costs award. The Plaintiff succeeded both before McCarthy J and me in proceedings that were quite different than “costs thrown away”.

[6] I agree that the costs of finalizing McCarthy J.’s order are not before me such that the costs award I fix hereafter does not include fees claimed in that regard.

[7] The Plaintiff was successful in resisting the Defendant’s motion for leave to appeal and shall have their costs fixed at a partial indemnity scale of $7,500 all in.

EBERHARD J.

Date: March 18, 2013