ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 11-53097
Date: 2013/07/31

RE: The Estate of Nancy Elizabeth Passy, Motion for Leave to Appeal the Costs order of Master C. MacLeod, dated June 11, 2013

BEFORE: Madam Justice B. R. Warkentin

COUNSEL: Stephen Victor for the Plaintiff and John Cardill for the Defendant

HEARD: July 30, 2013

ENDORSEMENT

On Appeal from the Costs Award of Master C. MacLeod of the Superior Court of Justice dated June 11, 2013, at Ottawa, Ontario

[1] The Plaintiff seeks leave to appeal the costs order made by Master C. MacLeod on June 11, 2013 in which he found that no costs should be awarded to either party after providing reasons on a motion heard on April 30, 2013.

[2] Counsel have both referred to section 133 (b) of the Courts of Justice Act, which requires leave of the Court if an appeal is only as to costs.

[3] Counsel were also in agreement that leave will only be granted sparingly and where there are strong grounds upon which an appellate court could find that the court below erred in the exercise of discretion. Berezowski v Turner [2009] 33517 (ON SC) at paras 2-3 and Bougadis Chang LLP v 1231238 Ontario Inc. [2012] ONSC No. 6409 at para 2.

[4] Appellate Courts are loath to interfere with a lower court's discretion concerning costs and will do so only in very limited circumstances. See Canada 3000 Inc. (Re), [2004 32169 (ON CA)](https://www.canlii.org/en/on/onca/doc/2004/2004canlii32169/2004canlii32169.html), 2004, 69 O.R. (3d) 1 (C.A.).at paras 215, 216 and 218

[5] In my opinion, this is not a case to interfere with the Master's costs order. Master MacLeod heard all of the evidence on the motion. He then reviewed the written costs submissions and it was within his discretion to determine whether or not an award of costs was warranted, notwithstanding the Plaintiff was substantially successful on the motion.

[6] I find there are no strong grounds upon which an appellate court could find the Master was plainly wrong or erred in principle.

[7] Specifically, I do not accept the Plaintiff's argument that the Master erred in his Costs Award when he stated that he had directed the parties to discuss and seek to resolve the issue of costs by agreement, notwithstanding his written reasons on the motion stated that he would deal with costs if requested to do so.

[8] The Master's reasons on the motion neither indicated that costs would follow the event nor that the Plaintiff was entitled to costs. Had the Master made those findings on the motion, then there would have been strong grounds upon which an appellate court could find the Master was plainly wrong or erred in principle.

[9] In his reasons, the Master clearly explained why he was not making an order for costs in this matter. In making that finding, he referred to some of the evidence that was before him at the motion and considered the conduct of the parties.

[10] The Master was entitled to exercise his discretion when determining not to award costs to the Plaintiff. Throughout his reasons on costs, Master MacLeod clearly considered the fact that costs typically follow a successful motion. He then carefully and fully explained why he was not making such an order. In paragraph 10 of his Costs Award the Master reserved the authority to revisit the question of costs or to award costs if either party behaves unreasonably in moving forward with the issues that were the subject of the motion.

[11] I therefore do not find any good reason to doubt the correctness of Master MacLeod's decision. The Plaintiff's motion seeking leave to appeal the costs order of Master MacLeod dated June 11, 2013 is therefore dismissed.

[12] The parties provided me with costs submissions on this motion for leave. After considering their submissions and bills of costs I award the Defendant costs of this motion for leave to appeal, the sum of $2,500.00 inclusive of HST and disbursements.

Madam Justice B. R. Warkentin

Released: July 31, 2013