Court File and Parties

COURT FILE NO.: DC-16-9400ML DATE: 2017 01 11 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Hong Linh Dang v. Natalie Anderson

BEFORE: LEMAY J

COUNSEL: A. McLennan for the Applicant R. Lachmansingh for the Respondent

HEARD: In Writing

Endorsement

LEMAY J

[1] I dismissed the Applicant’s application for leave to appeal to the Divisional Court by way of a decision on December 13th, 2016. I have now received costs submissions from the parties. The purpose of this endorsement is to fix the costs for the leave to appeal application.

The Position of the Parties

[2] The Respondent seeks costs in the amount of $9,698.28, generally on a partial indemnity basis. The Respondent seeks these costs for the following reasons:

a) The Applicant advanced a significant number of complicated grounds of appeal.

b) The Applicant did not follow the Rules of Civil Procedure and file all of the required materials for the appeal.

c) The time spent by the Respondent’s counsel was reasonable.

[3] The Applicant argues that it would not be appropriate to provide a significant costs award at this stage because there is no finding that the Respondent (Defendant) will succeed at trial, and there is a suspicious issue of forgery raised by the Plaintiff.

[4] In addition the Applicant argues that this motion was straightforward and not complicated, and that all of the material necessary to decide the motion was provided in the Applicant’s materials. Finally, the Applicant argues that the principle of proportionality should be considered in assessing costs.

Law and Analysis

[5] The principles to be applied when considering costs awards are set out in Rule 57.01 of the Rules of Civil Procedure. The most relevant of those principles are:

a) The result in the proceeding.

b) The complexity of the proceeding.

c) The conduct of the parties.

[6] I start with the result in the proceeding. The Respondent was entirely successful in this motion and, as a result, this factor supports a higher award of costs to the Respondent.

[7] This brings me to the complexity of the proceeding. The Respondent rightly points out that the Applicant raised between fifteen and seventeen grounds of appeal in this case. I disagree with the Applicant’s assertion that this was a straightforward leave to appeal application. The Applicant’s own materials made the application more complicated. This is a factor that supports a higher award of costs to the Respondent.

[8] Finally, there is the conduct of the parties. As I noted in the previous paragraph, the Applicant’s submissions raised fifteen to seventeen different grounds of appeal. Raising this many issues unduly complicated the appeal. This is also a factor that supports a higher award of costs to the Respondent.

[9] In this respect, I also note that the Applicant continues to allege that the Respondent engaged in fraudulent conduct. This is not an issue that is relevant on this leave to appeal application. The only question in terms of the merits of the case that is relevant on the leave to appeal application is who has been successful.

[10] This brings me to the question of proportionality. I acknowledge and accept the Applicant’s position that the principle of proportionality must be considered in assessing costs. However, I reject the principle that there is a standard maximum of $3,500.00 as a costs award in leave to appeal applications. In Fernicola (In Trust) v. Creview Development Corp. (), Wilson J. referred to a standard award of costs for a standard leave to appeal decision.

[11] This decision was decided nearly eight years ago. In addition, however, it refers to a standard leave to appeal application. This case was more complex than a standard leave to appeal application, in large part because the Applicant raised fifteen to seventeen grounds of appeal.

[12] In the circumstances, an award significantly higher than $3,500.00, plus HST and disbursements should be made. In my view, given the foregoing factors, I award costs in the sum of $6,500.00 inclusive of HST and disbursements. Those costs are to be paid within fourteen (14) days of the release of this endorsement.

LEMAY J Released: January 11, 2017