2017 ONSC 6301, 2017 ONSC 6301

CITATION : S.C. v. N.S. 2017 ONSC 6301 DIVISIONAL COURT FILE NO.: 57/17 DATE: 20171020 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: S.C. and others v. N.S. and others BEFORE: KITELEY, NORDHEIMER & D. L. CORBETT JJ. COUNSEL: S.C. Hutchison, A. Smith & W.C. McDowell, for the appellant I. McKinnon & A. Chaisson, for the respondent HEARD: Written submissions ENDORSEMENT – COSTS [ 1 ] On September 20, 2017, this court released its decision allowing N.S.’s appeal, setting aside the order of the motion judge and granting a declaration.

We said in our reasons that, given the nature of the issues raised in this appeal, its novelty, and the fact that the result is of importance to the administration of justice generally, we would not be inclined to make any order as to costs. However, we invited written submissions from the parties if they took issue with that preliminary conclusion. [ 2 ] The parties have now filed written submissions. The appellant seeks a costs award of $12,000 inclusive for all three steps in the proceeding, that is, the original motion, the motion for leave to appeal and the appeal itself.

The respondent wishes our preliminary conclusion to be the final one, that is, no order as to costs of the appeal or the motion for leave to appeal. It appears though that the respondent intends that the motion judge’s costs award of $4,000 in her favour should remain. [ 3 ] The fact that an appeal may raise a novel issue is not, by itself, necessarily a reason not to award costs. Similarly, there is no rule that the first case to raise a particular issue should not attract a costs award. Someone always has to be first and there is always a public benefit to having a court clarify any legal issue.

However, what is telling in this case is that not only was the issue novel, it was viewed by this court as important to determine the proper approach to this aspect of the deemed undertaking rule not only for this case but for the benefit of future cases. As such, it falls within the type of case that is referred to in Orkin, The Law of Costs , (loose-leaf ed.), at §205.2(d): An action or motion may be disposed of without costs when the question involved is a new one, not previously decided by the courts on the theory that there is a public benefit in having the court give a decision; or where it involves the

interpretation of a new or ambiguous statute; or a new or uncertain or unsettled point of practice, or law, or in a case of first instance, or where there were no previous authoritative rulings by courts, or decided cases on point. [ 4 ] In the end result, we consider that our preliminary conclusion on costs is the correct one. There will be no order for costs of the original motion, the motion for leave to appeal or the appeal itself.

KITELEY J. NORDHEIMER J. D. L. CORBETT J. DATE: