2013 ONSC 5066, 2013 ONSC 5066

CITATION : Passy Estate v. Forrest-Cluney, 2013 ONSC 5066 COURT FILE NO.: 11-53097 DATE: 2013/07/31 ONTARIO SUPERIOR COURT OF JUSTICE RE: The Estate of Nancy Elizabeth Passy, Motion for Leave to Appeal the Costs order of Master C. MacLeod, dated June 11, 2013 BEFORE: Madam Justice B. R. Warkentin COUNSEL: Stephen Victor for the Plaintiff and John Cardill for the Defendant HEARD: July 30, 2013 E N D O R S E M E N T On Appeal from the Costs Award of Master C. MacLeod of the Superior Court of Justice dated June 11, 2013, at Ottawa, Ontario [1] The Plaintiff seeks leave to appeal the costs order made by Master C.

MacLeod on June 11, 2013 in which he found that no costs should be awarded to either party after providing reasons on a motion heard on April 30, 2013. [2] Counsel have both referred to

section 133 (

b) of the Courts of Justice Act , which requires leave of the Court if an appeal is only as to costs. [3] Counsel were also in agreement that leave will only be granted sparingly and where there are strong grounds upon which an appellate court could find that the court below erred in the exercise of discretion. Berezowski v Turner [2009] CanLII 33517 (ON SC) at paras 2-3 and Bougadis Chang LLP v 1231238 Ontario Inc. [2012] ONSC No. 6409 at para 2. [4] Appellate Courts are loath to interfere with a lower

court's discretion concerning costs and will do so only in verylimited circumstances. See Canada 3000 Inc. (Re), (ON CA), 2004, 69 O.R. (3d) 1 (C.A.).at paras 215, 216and 218 [5] In my opinion, this is not a case to interfere withthe Master's costs order. Master MacLeod heard all of theevidence on the motion.

He then reviewed the written costssubmissions and it was within his discretion to determinewhether or not an award of costs was warranted,notwithstanding the Plaintiff was substantially successful on themotion. [6] I find there are no strong grounds upon which anappellate court could find the Master was plainly wrong orerred in principle. [7] Specifically, I do not accept the Plaintiff's argumentthat the Master erred in his Costs Award when he stated that hehad directed the parties to discuss and seek to resolve the issueof costs by agreement, notwithstanding his written reasons onthe motion stated that he would deal with costs if requested todo so. [8] The Master's reasons on the motion neitherindicated that costs would follow the event nor that the Plaintiffwas entitled to costs.

Had the Master made those findings onthe motion, then there would have been strong grounds uponwhich an appellate court could find the Master was plainlywrong or erred in principle. [9] In his reasons, the Master clearly explained why hewas not making an order for costs in this matter. In makingthat finding, he referred to some of the evidence that was beforehim at the motion and considered the conduct of the parties. [10] The Master was entitled to exercise his discretion

when determining not to award costs to the Plaintiff. Throughout his reasons on costs, Master MacLeod clearly considered the fact that costs typically follow a successful motion. He then carefully and fully explained why he was not making such an order. In paragraph 10 of his Costs Award the Master reserved the authority to revisit the question of costs or to award costs if either party behaves unreasonably in moving forward with the issues that were the subject of the motion. [11] I therefore do not find any good reason to doubt the correctness of Master MacLeod's decision.

The Plaintiff's motion seeking leave to appeal the costs order of Master MacLeod dated June 11, 2013 is therefore dismissed. [12] The parties provided me with costs submissions on this motion for leave. After considering their submissions and bills of costs I award the Defendant costs of this motion for leave to appeal, the sum of $2,500.00 inclusive of HST and disbursements. ___________________________ Madam Justice B. R. Warkentin Released: July 31, 2013