2017 ONSC 3707, 2017 ONSC 3707

CITATION : Wagner Sidlofsky LLP v. Gironda, 2017 ONSC 3707 DIVISIONAL COURT FILE NO.: 142/17 DATE: 20170628 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: WAGNER SIDLOFSKY LLP , Plaintiff/Applicant AND: JOHN GIRONDA, FRANK GIRONDA, SALVATORE GIRONDA and THE ESTATE OF CATERINA GIRONDA, Defendants/Respondents AND RE: WAGNER SIDLOFSKY, Plaintiff/Applicant AND: FRANK GIRONDA and SALVATORE GIRONDA, Defendants/Respondents AND RE: WAGNER SIDLOFSKY LLP, Plaintiff/Applicant AND: JOHN GIRONDA, Defendant/Respondent BEFORE: SPIES J. COUNSEL: Gregory M. Sidlofsky , for the Plaintiff Christopher M.B.

Graham , for the Defendants Frank Gironda and Salvatore Gironda Judith L. Turner , for the Defendant John Gironda Craig Ross , for the Estate Trustee of the Defendant, The Estate of Caterina Gironda, deceased HEARD at Toronto: In writing ENDORSEMENT [ 1 ] The plaintiff, Wagner Sidlofsky LLP (“WS”), seeks leave to appeal the costs order of Madam Justice Chiappetta dated March 10, 2017. This order was made after Chiappetta J. heard three motions between WS and the defendants, Frank Gironda and Salvatore Gironda (“the Gironda Brothers”) on February 9, 2017. At that time Chiappetta J.: (

i) granted the Gironda Brothers’ motion that one of the three actions brought by WS (Action Two) be dismissed, (ii) granted the plaintiff’s motion that the remaining actions, Action One and Action Three, be consolidated and (iii) dismissed the balance of the motions brought by the plaintiff and the defendants. [ 2 ] The motion judge gave reasons for her decision with respect to costs after receiving written submissions from the parties. Before the motion judge, both sides asked for costs on a substantial indemnity basis. WS sought costs in the amount of $31,679 plus HST.

The motion judge explained why she concluded that the overall success on the three motions was divided “relatively equally” and that “both parties made unhelpful allegations as against each other and their respective counsel in their efforts to support and respond to the respective motions, thereby rendering a relatively straightforward argument and adjudication more complex.” On this basis she ruled that no costs be awarded to either party including costs of the cross-examinations conducted by WS for the motions.

With respect to the action that was dismissed against the Gironda Brothers, the motion judge ordered payment of costs by WS to these defendants in the amount of $3,000 inclusive to cover the cost of preparing the statement of defence. [ 3 ] WS argues that the order with respect to costs was a final order and that as such ss. 19(1)(

a) and s. 19(1.2)(

a) of the Courts of Justice Act (the “ Act ”) apply, not the test for leave to appeal set out in Rule 62.02(4) of the Rules of Civil Procedure . The defendants argue that Rule 62.02(4)(

b) applies as the test for leave to appeal. [ 4 ] Neither party is correct as to the test for leave that applies in this case. When dealing with the appeal of a costs order only, to determine this court’s jurisdiction, one has to look first at the nature of the order that resulted in the costs order. The fact that no appeal has been taken from an interlocutory order and there is only an appeal with respect to costs does not convert the costs order into a final order; see Yakabuski v. Yakabuski Estate , [1988] O.J. No. 2870 (Div.

Ct.) at para. 2 . [ 5 ] In this case the costs order made by the motion judge with respect to all of the motions, save for the motion by the Gironda Brothers to dismiss Action Two, is clearly interlocutory. The order made dismissing Action Two is a final order. WS does not appeal that order but does seek to appeal the $3,000 awarded in costs.

[6] With respect to the interlocutory costs orders, the test for leave to appeal to this court is set out in Rule 62.02(4) applies. AsWS has not suggested that there are any conflicting decisions with the decision of the motion judge, the branch of the test that WS mustmeet is Rule 62.02(1)(b). The onus is on the applicant to satisfy this court that there is good reason to doubt the correctness of the ordermade by the motion judge and that the proposed appeal involves matters of such importance that, in this court’s opinion, leave to appealshould be granted. [7] The words in Rule 62.02(4)(

b) have been interpreted to make it clear that “matters of such importance” that leave to appealshould be granted are matters of general importance, not matters of particular importance relevant only to the litigants, see ComTradePetroleum Inc. v. 490300 Ontario Limited (1992), (ON SC), 7 O.R. (3d) 542 (Div. Ct.). [8] With respect to the motion judge’s costs order that is final, since the costs order falls within the monetary limits of ss.19(1.1) and 19(1.2) of the Act, leave of this court is required pursuant to s. 133 (

b) of the Act which provides that no appeal lies withoutleave of the court to which the appeal is to be taken where the appeal is only as to costs that are in the discretion of the court that madethe order for costs. [9] As WS asserts, the test for leave from a final costs order is whether or not there are “strong grounds upon which theappellate court could find that the judge erred in exercising his discretion”; see McNaughton Automotive Ltd. v. Cooperators GeneralInsurance Co., 2008 ONCA 597 at para. 24, citing with approval Brad-Jay Investments Ltd. v. Szijjarto, (ON CA),[2006] O.J.

No. 5078 (ONCA) at para. 21. [10] The Court of Appeal has also stated that “[l]eave to appeal a costs order, standing alone, is granted only sparingly,” see Inter-Trust Mortgage Investment Corp. v. Robinson, 1999 CarswellOnt 1733 (C.A.) at para. 12. Similarly in a decision of the Supreme Courtof Canada; Hamilton v.

Open Window Bakery Ltd., 2004 SCC 9 , [2004] 1 S.C.R. 303, Arbour J. said: “[a] court should set asidea cost award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong,” at para. 27.Accordingly, leave to appeal the interlocutory costs order is denied. [11] It is not necessary to consider the merits of the proposed appeal although it appears that WS’s submissions amount torearguing the matter hoping for a better result.

With respect to the interlocutory costs order, there is absolutely no matter of generalimportance to the appeal beyond the parties to this litigation. As for the final order, I am not satisfied that there are strong grounds uponwhich this court could find that the motion judge erred in exercising her discretion. The reasons of the motion judge explain how shearrived at the amount of $3,000 all inclusive for costs. The defendants had asked for costs of almost $13,600.

The motion judgeconsidered the fact that most of their efforts would have been directed to defending Action Three and so that the only costs incurred thatwould never be recoverable would be for drafting a statement of defence. That result is unassailable. Leave to appeal that award is alsodenied. [12] For these reasons the plaintiff’s motion is dismissed with costs. The Gironda Brothers seek costs of $2,500 on a partialindemnity basis. No costs outline was submitted.

Although WS asks for $3,500 in costs if successful, it submits that if the motion isdismissed there should only be a nominal costs award of $500 in favour of the Gironda Brothers given the very limited material theyfiled, the incorrect legal test relied on by the these defendants and the conduct of the defendants on the motion below. [13] The alleged conduct of the defendants before the motion judge is not relevant now given the findings of the motion judgewhich demonstrate no palpable error. She was in the best position to assess this issue.

Both counsel got the test for leave wrong and thefact that WS filed extensive materials that were not relevant to my determination of this motion is not a relevant comparator. The GirondoBrothers had no choice but to respond to a meritless motion. In my view costs in the amount of $1,000 all-inclusive is reasonable and isordered to be paid by the plaintiff to the Girondo Brothers within 30 days of this endorsement. [14] As the motion judge said, the parties have already expended a great deal of resources and there has not been much progress ofthis action.

It was for that reason the motion judge assigned herself as the case management judge, hoping to bring some focus to thislitigation. I hope the parties follow her lead and that counsel seek instructions to move this matter forward without wasting their client’sresources on meritless interlocutory proceedings. ___________________________ SPIES J. Date: June 28, 2017