



COURT OF APPEAL FOR ONTARIO

CITATION: Platnick v. Bent, 2018 ONCA 851

DATE: 20181024

DOCKET: C63103

Doherty, Brown and Huscroft JJ.A.

BETWEEN

Howard Platnick

Plaintiff (Appellant)

and

Maia Bent and Lerners LLP

Defendants (Respondents)

Timothy S. B. Danson and Marjan Delavar, for the
    appellant

Howard Winkler and Eryn Pond, for the respondent, Maia
    Bent

Terrence J. OSullivan and Andrew Winton, for the
    respondent, Lerners LLP

Heard: June 28, 2017

On appeal from the order of Justice Sean F. Dunphy of the
    Superior Court of Justice, dated December 1, 2016, with reasons reported at
    2016 ONSC 7340, 136 O.R. (3d) 339, and from the costs order, dated January 24,
    2017, with reasons reported at 2017 ONSC 585.

COSTS ENDORSEMENT

A.

costs of the motion

[1]

Having reviewed the written submissions provided by counsel we order
    that there should be no costs on the motion before Dunphy J. We make that order
    for three reasons. First, the presumption in s. 137.1(8) of the
Courts of
    Justice Act,
R.S.O. 1990, c. C.43
,
    favors a no costs order when the moving party is unsuccessful on the motion.

[2]

Second, a significant part of the proceedings on the motion involved
    meritless constitutional and procedural arguments brought by the appellant.
    Whatever costs the appellant might have received in light of his success on the
    s. 137.1 motion, would have been substantially offset by costs payable to the
    respondents in respect of the other unsuccessful and meritless motions brought
    by the appellant.

[3]

Third, it is impossible on the material filed before us to distinguish
    between the costs attributable to the appellants defence of the s. 137.1
    motion and the costs attributable to the various other motions brought by the
    appellant.

[4]

We considered requesting bills of costs in respect of the motion with a
    view to attributing costs to either the s. 137.1 motion, or the various other motions
    brought by the appellant. However in the end we are satisfied that request
    would only prolong the resolution of the proceeding underlying this motion.
    Presumably this matter will proceed to trial. The trial judge will have full
    authority to deal with all cost issues relating to the trial proceedings. Some
    of the costs already incurred may be recoverable as trial costs.

B.

costs of the appeal

[5]

We would award costs of the appeal to the appellant on a partial
    indemnity basis. Those costs must however be reduced to reflect time spent and
    expenses incurred in respect of constitutional and procedural arguments raised
    by the appellant that had no merit. In our view a proper reflection of both the
    outcome of the appeal and the unnecessary time and expense generated by some of
    the appellants submissions is an order of costs to the appellant in the amount
    of $10,000, as against the respondent, Bent, and $10,000, as against Lerners
    LLP. Those figures include disbursements and relevant taxes.

Doherty J.A.

David Brown J.A.

Grant Huscroft J.A.


