Court File and Parties

COURT FILE NO.: CV-12-00453029
DATE: 20131119

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Doriana Silva, Plaintiff/Respondent

– AND –

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

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

AMENDED COSTS ENDORSEMENT

[1] This Amended Costs Endorsement replaces the Costs Endorsement issued by me on November 18, 2013 (cited as Silva v. Avid Dating Life Inc., 2013 ONSC 7126).

[2] 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.

[3] The Respondent was successful in the appeal and deserves its costs of the appeal. Mr. Dollak, 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.

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

[5] 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.

[6] I initially misunderstood Mr. Maurer’s first submission and did not realize that he was referring to a motion that he brought on behalf of the Appellants to Master Hawkins on July 5, 2013 to stay the order below. I appreciate Mr. Maurer correcting me on this and bringing Master Hawkins’ Order to my attention. Mr. Dollak agrees that my initial impression was mistaken and that the stay motion relevant here is the July 5, 2013 motion.

[7] In Master Hawkins’ ruling he stayed the order below pending this appeal, and reserved the costs of the stay motion to the judge hearing this appeal. Mr. Maurer submits that the Appellants were successful in the stay motion and has requested $2,950.36 in costs for the Appellants in respect of that motion.

[8] Master Hawkins is a different Master than decided the motion under appeal, which was decided by Master Dash. Mr. Dollak indicates in his submissions that he had suggested in an email to Mr. Maurer that Master Dash himself be approached with the stay request on an expedited basis. That would have been a more efficient way to proceed, consuming far less preparation, time, and expense than the nearly $3,000 in costs that the Appellants seek for the stay motion before Master Hawkins. But apparently that was not done.

[9] That said, the most efficient way to proceed would have been for the Respondent to simply agree to the stay pending appeal. Master Dash’s ruling below required certain revisions to the Statement of Claim; had I reversed the Master’s ruling on the parts of the pleading under appeal, it would have necessitated even further revisions to the claim.

[10] It would have been an unfortunate waste of time and expense had the Appellants issued a Statement of Defense in response to a revised Statement of Claim following the motion before Master Dash, only to find that they had to amend their Statement of Defense to respond to a further revised claim following my judgment on appeal. As it turns out I upheld Master Dash’s ruling, but the parties could not have considered that a foregone conclusion at the time that the stay motion was heard.

[11] The Appellants are therefore entitled to some costs on account of the motion for a stay pending appeal. As a corollary, a small portion of the costs claimed by the Respondent on the appeal should be deducted as these encompass costs related to the stay motion. Given that the Appellants brought the appeal in a way that was less efficient than bringing it back to the original Master who decided the motion, I would award them a total of $1,500 in respect of the stay motion. I would also deduct $500 from the Respondent’s costs of the appeal as costs attributable only to the stay motion.

[12] 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.

[13] Nevertheless, the Appellants calculate their own costs of the appeal 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 for the appeal alone (with another nearly $3,000 for the motion), then it does not strike me as unreasonable that the Respondent accumulated just over $8,000 for the appeal and the motion combined.

[14] The Respondent shall have its costs of the appeal in the amount of $8,043.57, less the $500 deducted as costs relating to the stay motion, for a total of $7,543.57. Set off against this is the $1,500 that I have awarded to the Appellants as the costs of the stay motion reserved to me by Master Hawkins.

[15] The Appellants shall therefore pay the Respondent $6,043.57 in costs, inclusive of all disbursements and HST.

Morgan J.

Date: November 19, 2013