



COURT OF APPEAL FOR ONTARIO

CITATION: 1079268 Ontario Inc. v.
    GoodLife Fitness Centres Inc., 2017 ONCA 1012

DATE: 20171220

DOCKET: C61367

Cronk, Rouleau and Huscroft JJ.A.

BETWEEN

1079268 Ontario Inc.

Applicant (Respondent)

and

GoodLife Fitness Centres Inc.

Respondent (Appellant)

John K. Downing and Brian Whitwham, for the appellant

Kevin D. Sherkin, Elizabeth Barrass and Carmine Scalzi,
    for the respondent

Heard: September 19, 2016

On appeal from the order of Justice Ruth E. Mesbur of the
    Superior Court of Justice, dated October 5, 2015, with reasons reported at 2015
    ONSC 6772.

COSTS ENDORSEMENT

[1]

On January 10, 2017, this court released its decision on this appeal,
    setting aside the order of Mesbur J. dated October 5, 2015. The parties were
    invited to make written submissions on costs. However, the written submissions
    received addressed only the costs of the appeal and did not provide the
    parties positions on the costs of the application below.

[2]

The appellant was awarded its costs of the appeal, fixed by agreement of
    the parties at $20,000, inclusive of taxes and disbursements. The costs award
    on the application below was reversed.

[3]

The parties have been unable to agree on the costs to be awarded on the
    application below.

[4]

The parties primarily contested two issues on the application. Success
    on the application was divided. As a result, in her endorsement released
    November 2, 2015, the application judge reduced the respondents costs from the
    agreed amount of $42,500 to $30,000, stating, at para. 112:

The parties agreed the appropriate amount of costs for the
    successful party on the application would be $42,500 inclusive of disbursements
    and taxes. Since the applicant did not succeed on its claim for rectification,
    it enjoyed only partial success. The applicant will therefore have its costs
    fixed at $30,000 all inclusive.

[5]

The parties disagree on whether this courts decision to reverse the
    costs award on the application requires the respondent to pay to the appellant
    $30,000 or $42,500 for the application below.

[6]

Given that the appellant succeeded on both issues argued at the
    application, the appellant is entitled to the costs of the application agreed
    upon by the parties before the application judge. The appropriate costs award
    on the application is the agreed amount of $42,500.

[7]

Accordingly, paragraph 45 of this courts January 10, 2017 reasons is
    amended to read as follows:

GoodLife is entitled to its costs of the appeal, fixed by
    agreement of the parties at $20,000, inclusive of taxes and disbursements.
    GoodLife is also entitled to costs of the application in the originally agreed amount
    of $42,500, inclusive of taxes and disbursements.

E.A. Cronk
    J.A.

Paul Rouleau
    J.A.

Grant
    Huscroft J.A.


