Court File and Parties

COURT FILE NO.: CV-12-00453029

DATE: 20131118

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Doriana Silva, Plaintiff

– AND –

Avid Dating Life Inc. c.o.b. Ashley Madison and as Ashleymadison.com, Avid Life Media Inc. and the Career Foundation, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Matthew P. Maurer, for the Defendants/Appellants, Avid Dating Life Inc. c.o.b. Ashley Madison and as Ashleymadison.com, Avid Life Media Inc.

Paul Dollak, for the Plaintiff/Respondent

HEARD: October 18, 2013, with written submissions on costs

COSTS ENDORSEMENT

[1] On October 24, 2013, I released my endorsement in this appeal and requested written submissions on costs. Both parties have now provided me with those submissions.

[2] The Respondent was successful in the appeal and deserves its costs of the appeal. Mr. Dollack, on behalf of the Respondent, has provided me with a copy of an offer to settle the appeal on a no costs basis made by the Respondent on June 27, 2013. He submits that since the offer was rejected by the Appellants, and the Appellants lost the appeal, the Respondent’s costs should be fixed on a substantial indemnity scale for the period following the offer.

[3] Calculated as partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, Mr. Dollack requests a total of $8,043.57, including disbursements and taxes.

[4] Mr. Maurer, for the Appellants, responds with two arguments: a) the Appellants deserve their costs of a motion to stay the ruling of the Master below pending the appeal; and b) in any case, the costs requested by the Respondent are excessive given that all of the “heavy lifting” in researching and drafting the argument had already been done at the initial stage of the motion in Masters’ court.

[5] In my view, there was no reason for a motion to be brought before me to stay the Master’s ruling. A motion for a stay pending appeal brought to the appellate court itself on the day of the appeal is not a useful exercise. I realize that the scheduling of the stay motion is effectively what made it moot, but given the scheduling protocols in Motions court the stay exercise was destined to be futile. Mr. Dollak indicates in his submissions that he had suggested in an email to Mr. Maurer that the Master himself be approached with the stay request on an expedited basis. That apparently was not done.

[6] The Appellants are not entitled to any costs on account of the motion for a stay pending appeal.

[7] The Appellants’ second argument – that the Respondent’s request for costs is excessive given that the issues on appeal were identical to those before the Master – is undermined by the Appellants’ own Costs Outline. The issues that the Appellants had to research and on which they made submissions were no different than those on which the Respondent worked. While the Appellants inevitably had a bit more of an organizational chore in putting together the Appeal Record, the difference should not be that substantial.

[8] Nevertheless, the Appellants calculate their own costs as being a total of $9,250.27 on a partial indemnity scale and $12,870.22 on a substantial indemnity scale. That is more than the Respondent requests by a factor of roughly one-third. If the Appellants accumulated more than $12,000 in substantial indemnity costs, then it does not strike me as unreasonable that the Respondent accumulated just over $8,000.

[9] The Appellants shall pay the Respondent costs of the appeal in the total amount of $8,043.57, inclusive of all disbursements and HST.

Morgan J.

Date: November 18, 2013