2017 ONSC 4738, 2017 ONSC 4738

CITATION : 2265535 Ontario Inc. v. Vijayant Sood, 2017 ONSC 4738 DIVISIONAL COURT FILE NO.: 370/17 DATE: 20170804 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: 2265535 ONTARIO INC. and others, Responding Parties (Applicants) AND: VIJAYANT SOOD and others, Moving Parties (Respondents) BEFORE: THEN, SACHS, NORDHEIMER JJ. COUNSEL: J. Kulathungam , for the Responding Parties (Applicants) D. Best & L.

Filgiano , for the Moving Parties (Respondents) HEARD at Toronto: written submissions ENDORSEMENT [ 1 ] As of July 1, 2017, the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 were amended to significantly change the process by which motions for leave to appeal are determined in the Divisional Court. One change is that motions for leave to appeal are now heard and determined by a panel of the Divisional Court as opposed to a single judge. The other change is that the requirement for reasons to be given, if leave is granted, is removed.

Consequently, the Divisional Court, like the Court of Appeal and the Supreme Court of Canada, will now not normally provide reasons for the granting or refusal of leave to appeal. [ 2 ] However, in this particular instance, we are providing some reasons to address the issue of costs that arises from this new process. [ 3 ] The moving parties sought leave to appeal from the order of Richetti J. dated May 10, 2017 in which he awarded substantial indemnity costs in the amount of $76,000 against the moving parties arising out of a motion for contempt brought by the responding parties.

We have dismissed the motion for leave to appeal. [ 4 ] The moving parties sought costs of $13,474.78 (inclusive of disbursements and HST) respecting the motion for leave to appeal, on a partial indemnity basis, if they were successful. The responding parties sought costs of $14,664.79 on a substantial indemnity basis and $12, 406.97 on a partial indemnity basis if they were successful.

We do not see any reason to award the costs of the motion for leave to appeal on a substantial indemnity basis. [ 5 ] The issue of broader application is the question of the normal expectation for costs arising out of a motion for leave to appeal under this new process. It may provide some guidance to the profession to know that we consider the normal award of costs on a motion for leave to appeal will be in the range of $5,000 (inclusive of disbursements and HST).

By providing that guidance, we do not mean to suggest that there will never be instances where the costs for a motion for leave to appeal will be larger or smaller than that amount. The particular circumstances of each motion will always be considered in arriving at the appropriate amount for costs. [ 6 ] For example, it may be that in a particular motion, where the issues involved are especially complicated, a higher amount may be awarded. Similarly, in a motion where there is a single straightforward question, the amount awarded may be less.

We simply provide what we say will be the normal costs award. [ 7 ] We do wish to point out, however, that motions for leave to appeal that are made lengthier, or more complicated, by the desire of the parties to argue the appeal itself, rather than the issue of whether leave should be granted, will not qualify for a larger amount for costs through that mechanism. In this case for example, the issue on the motion for leave to appeal was a narrow one, that is, did the motion judge err in awarding costs on the substantial indemnity scale. Notwithstanding that narrow issue, six volumes of a motion record were filed.

Similarly, more time was spent in the facta on the merits of the appeal (and the motion judge’s findings of fact) than was spent on the test for leave. None of that considerable effort was necessary for the leave motion to be heard and determined and none of it justifies an award of costs at the levels suggested by the parties. [ 8 ] We therefore fix the costs of the motion for leave to appeal at $5,000 (inclusive of disbursements and HST) payable by the moving parties to the responding parties within thirty days.

_______________________________ THEN J. _______________________________ SACHS J. _______________________________ NORDHEIMER J. Date: August 4, 2017