Court File and Parties

Court File No.: 0088/11 Date: 2017-06-02 Superior Court of Justice - Ontario

Re: Janette Beaumont, Plaintiff And: Joshua Lewis and The Estate of Charlotte Scott, deceased, by her Litigation Administrator, Robert J. Nagel, Defendant

Before: Justice B.A. Glass

Counsel: Gordon Marsden, Counsel, for the Plaintiff M. Gregg Abogado & Andrew E. Franklin, Counsel, for the Defendants

Heard: June 2, 2017

Endorsement

[1] Application for Leave to Appeal Costs Order of Corkery J. to the Divisional Court

[2] On December 13, 2016, Corkery J. released an order regarding costs following a settlement of the proceedings reached in May 2016.

[3] The issue was costs flowing from the settlement offer of the Defendant. The offer referred to costs and disbursements to be agreed on or assessed.

[4] Following settlement, an issue arose whether costs and disbursements ran to the date of service of the offer to settle or until the date of acceptance.

[5] At stake was costs accumulation from March 21, 2016 until May 16, 2016. Disbursements during those months accumulated for an experts’ reports as well.

[6] Leave to appeal this decision to the Divisional Court may be granted pursuant to Rule 62.02 of the Rules of Civil Procedure if there are conflicting decisions on the issue and if there is foundation to question the correctness of the decision. Simply not liking a judicial decision is not sufficient for leave to appeal. A greater consideration must be involved.

[7] This motion for leave to appeal to the Divisional Court is dismissed because the Defendants do not meet the grounds required for leave within Rule 62.02. In effect, there is not a conflict in principles regarding the interpretation of the meaning of costs and when they take effect. The realistic difference for example between the decision of Corkery J. in this case and that of the court in Rosero v. Huang (1999) 44 O.R. (3d) 699 is the application of the facts.

[8] There are conflicting decisions to that of Corkery J.

[9] The focus of the decision of Corkery J. is that when a Defendant made an offer of settlement in which costs were addressed, when do costs apply? In this case, should the costs cover the period to March 21, 2016 inclusive, or should they extend to May 16, 2016? There was some significance with disbursements for experts during this two month period because one expert died and another was engaged for the trial.

[10] Rule 49.07(5) of the Rules of Civil Procedure provide for costs when offers emanate from the Plaintiff or the Defence. For example, Rule 49.07(5) states that if an accepted offer to settle does not provide for the disposition of costs, the Plaintiff is entitled to costs on a Defence offer as assessed to the date the Plaintiff was served with the offer. If the offer were a Plaintiff’s offer, the Plaintiff is entitled to costs assessed to the date the notice of acceptance was served by the Defendant.

[11] In the case before Corkery J., there is an argument that the offer to settle from the Defence did not provide for costs so that it is open for a judge to consider costs in the court’s discretion within the limitations of Rule 49.07(5).

[12] The theory of the Defence is that the court should approach the issue within the spirit of the Rules and cut off the time for costs at the March 24th date when the Defence made its settlement offer. Such was the case by Nordheimer J. in Rosero v. Huang et al., (1999), 44 O.R. (3d) 699. That application embodied the time boundaries of the Rule even though the court found that the Rule did not apply. That amounted to an award of costs in the discretion of the court.

[13] Corkery J. arrived at a different result than in Rosero in exercising his discretion.

[14] I am satisfied that the decisions of various courts have variations of interpretation that do not call for clarification.

[15] The first feature of leave to appeal is not established with conflicting decisions.

[16] The second aspect of a request for permission to appeal the decision is whether or not there is good reason to doubt the correctness of the order. That feature is not met either. Rather, this is not an appeal of important matters beyond the parties in this litigation. There is no need for correcting an order because of error in law.

[17] Leave to appeal the decision to the Divisional Court is dismissed.

[18] Costs are awarded to the Plaintiff in the sum of $5000.

Justice B.A. Glass Date: June 2, 2017