Court File and Parties
Court File No.: CV-14-498577 Date: 2022-01-05 Superior Court of Justice - Ontario
Re: Anna Mierzejewski, Plaintiff/Appellant And: Mark Brook and 1435664 Ontario Business Corporation, carrying on business under the name of Nationwide Freight Systems Ltd., Defendants/Respondents
Before: Stewart J.
Counsel: Michael Rotondo, for the Plaintiff/Appellant Nazli Buhary, for the Defendants/Respondents
Heard: In Writing
Costs Endorsement
[1] In my decision of November 19, 2021, I invited counsel for the parties to provide written submissions on costs if those could not be agreed upon my them. I now have received and considered submissions from both parties.
[2] The appeal brought by the Plaintiff was dismissed. As such, the Defendant obtained success on the appeal and is presumptively entitled to an award of costs.
[3] The Defendants seek the sum of $11,073.92 in costs. That amount includes "costs thrown away" of $5921.20 resulting from the cancellation fees incurred when the Plaintiff failed to attend the defence medical assessments arranged.
[4] The Plaintiff takes issue with the appropriateness of inclusion of those cancellation fees in the costs sought by the Defendants. It is further argued on behalf of the Plaintiff that there should be no costs awarded to the Defendants resulting from the outcome of the appeal.
[5] I agree with the Plaintiff that the cancellation fees are outside the purview of costs to be awarded following a successful appeal. If that issue cannot be ultimately resolved by them, the disbursements incurred may be pursued at trial or, if necessary, by separate motion.
[6] Since the Defendants successfully responded to the Plaintiff's appeal and obtained the dismissal they sought, I see no persuasive reason why they should not be entitled to an award of costs. In my view, given the materials required to be prepared, the nature of the issues and the time spent in argument, an appropriate amount to award to the Defendants for their costs is $4000.00, inclusive of disbursements and all applicable taxes. An order shall issue accordingly.
Date: January 5, 2022