CITATION: Daoust v. Powell, 2016 ONSC 892

BARRIE COURT FILE NO.: 10-1255

DATE: 20160203

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kathleen Daoust, Plaintiff

AND:

Shawn Powell and Natalie Simone Lyle, Defendants

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL: D.W. Lediard and P.J. Cahill, Counsel for the Plaintiff

D.I. Reisler, Counsel for the Defendants

HEARD: By written submissions

COSTS ENDORSEMENT

[1] The defendants, Shawn Powell and Natalie Simone Lyle, brought an “in writing” motion seeking leave to appeal the interlocutory order of Justice P.A. Douglas. For reasons given on December 22, 2015, the defendant’s motion for leave to appeal was dismissed.

[2] The parties were invited to make costs submissions and I have now received those submissions. The plaintiff, the successful party, seeks costs in the amount of $3,000 on a partial indemnity basis. The figure sought was lower than the Costs Outline and substantially lower than the actual rate as set out by the plaintiffs in their Costs Outline.

[3] The defendants submit that the costs sought are excessive given that this was an in-writing leave to appeal motion. The defendants submit that had they been successful, their costs as sought would have been $1,893 plus [unspecified] disbursements. Finally, the defendants submit that an award of costs of $1,000 would be reasonable under the circumstances.

Analysis

[4] It is well-settled that the Courts of Justice Act, s. 131 provides considerable judicial discretion on the issue of fixing costs. Rule 57.01 of the Rules of Civil Procedure sets out various factors that a court should consider in exercising its discretion, including the importance of the issues, the complexity of the proceedings, and the principle of indemnity. Proportionality and reasonableness are also important considerations in assessing costs.

Conclusion

[5] I am satisfied that the plaintiff is entitled to costs as the successful party. The defendants indicate that their costs, if successful, would have been $1,893. In my view, that reflects the reasonable expectation of the losing party. I am satisfied that costs should be fixed in the amount of $2,000 all inclusive, payable to the plaintiff by the defendants within 30 days of the release of this endorsement.

MULLIGAN J.

Date: February 3, 2016