CITATION: Leadbetter v. Nor, 2016 ONSC 5289
COURT FILE NO.: CV-13-227-00
DATE: 2016 10 14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MICHAEL LEADBETTER
A.Moras, for the Plaintiff/Respondent
Plaintiff/Respondent
- and -
ABDIRISSAQ NOR
Stan J. Sokol, for the Ministry of Attorney General, Appellant
Defendant/Appellant
HEARD: July 27, 2016
COSTS ENDORSEMENT
[1] I have now received the written submissions of the Ministry of Finance seeking costs of the appeal in the amount of $7,500.00 on a partial indemnity basis for both the appeal and the motion below. These costs are requested against a potential claim for costs the Minister could have made at that level of $13,162.20 on the motion and $3,132.20 for the appeal.
[2] The plaintiff submits that the appeal was successful on a technical interpretation of the Rules. He submits the issue on the appeal was novel, and that fairness dictates that there be no costs award. The plaintiff submits in the alternative that if some amount for costs be ordered, the defendant Nor did not initially make submissions at the initial hearing of the motion before Master Wiebe. The plaintiff argues that the defendant is now precluded from seeking costs for the initial hearing, and should only be entitled to some amount for the appeal.
[3] I would note that the bill of costs of the Minister for both the motion below and for the appeal are dated September 2, 2016. These materials suggest that the bill of costs for the motion was not put before the Master. This leaves me to infer that as there was no argument as to costs before the Master, the plaintiff did not have an opportunity to make submissions before the Master on costs. As such, he could not know what the Minister was seeking for the costs of the motion if successful on appeal.
[4] The Plaintiff submits that, in terms of quantum, the defendant be awarded half the sum the Minister is seeking as an amount that would be fair in the circumstances, payable in any event of the cause.
[5] It is clear from section 36 of the Solicitor’s Act, RSO 1990, C. S.15 that costs awarded to a party should not be disallowed or reduced merely because they relate to a solicitor or counsel who is a salaried employee of a party. Mr. Sokol is counsel employed by the Ministry of the Attorney, Civil Law Division, and represented the Financial Services Commission and Minister of Finance on the motion and on the appeal.
[6] Mr. Sokol was successful on the appeal, and his client is entitled to costs as the successful party. The issue on the appeal was not novel because of the Rules; it was novel because the plaintiff did not serve a jury notice within the prescribed time and did not seek leave to deliver a jury notice later. If anything, the fact that the issues were novel was of the plaintiff’s own making and the plaintiff should not be excused from having to pay costs for that reason. The Minister of Finance is therefore entitled to costs for the success achieved on appeal.
[7] It is a fundamental principal in the law of costs that whatever amount is awarded by a court for costs must be fair and reasonable to the unsuccessful party. This principle was enshrined by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (Ont. C.A.). One measure of what a fair and reasonable amount for costs would be is the amount the unsuccessful party could reasonably expect to pay for costs of the event.
[8] Although the submissions of the plaintiff did not provide any basis for the court to determine the amount the plaintiff could or would reasonably expect to pay as the unsuccessful party on the appeal or on the motion below, I consider the full $3,132.20 requested for the appeal, and an equal amount for the motion to be a fair and reasonable amount to award to the Minister of Finance. It is clear from the reasons of the Master that many of the arguments raised on the appeal were made on the motion. The Minister should be compensated for those costs as well.
[9] The total costs in the amount of $6,264.40 is therefore awarded to the Minister of Finance. This amount is also fair and reasonable having regard to the fact that it falls between the amount requested by Mr. Sokol on behalf of the Minister, and an amount equivalent to half that sum as suggested by the plaintiff.
[10] Despite the plaintiff’s request that the costs awarded be payable in any event of the cause, I do not consider it to be just or fair that the Minister of Finance should have to wait for payment. The costs award in the amount of $6,264.40 is therefore payable by the plaintiff on or before November 30, 2016.
Justice M.G. Emery
Released:
October 14, 2016
CITATION: Leadbetter v. Nor, 2016 ONSC 5289
COURT FILE NO.: CV-13-227-00
DATE: 2016 10 14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MICHAEL LEADBETTER
Plaintiff/Respondent
- and –
ABDIRISSAQ NOR
Defendant/Appellant
COST ENDORSEMENT
Justice M.G. Emery
Released: October 14, 2016