



COURT OF APPEAL FOR ONTARIO

CITATION: Newell v. Sax, 2019 ONCA 608

DATE: 20190717

DOCKET: C65765

Feldman, Roberts and
    Fairburn JJ.A.

BETWEEN

Eileen
    P. Newell

Applicant (Respondent)

and

Lawrence
    Sax and Sax Lawyers

Respondents (Appellants)

J. David Sloan, for the appellants

Robert G.
    Tanner
, for the respondent

Heard: March 5, 2019

On appeal from the order of Justice Morgan of the Superior
    Court of Justice, dated July 24, 2018.

COSTS ENDORSEMENT

[1]

The
    appellants submit that this courts $10,000 costs award in their favour on
    their successful appeal disposes of all costs in these proceedings, and that
    the respective costs awards granted to the respondent by the Assessment Officer
    in the amount of $8,000 and the application judge in the amount of $48,535.29
    are therefore set aside.

[2]

The
    respondent maintains that she remains entitled to both costs awards because she
    was ultimately successful in obtaining a substantial reduction in the
    appellants original account of $187,044.40 to $100,000 on appeal.

[3]

We
    agree that the respondent achieved substantial success as evidenced by the final
    result on appeal and was therefore justified in instigating the assessment and
    application.  This success warrants an appropriate costs award that is
    reasonable and proportionate in the circumstances.

[4]

With
    respect to the assessment, we agree that the $8,000 award does not reasonably
    reflect the respondents ultimate success in having the appellants account
    reduced to $100,000 from $187,044.40.  As a result, we increase the
    respondents costs on the assessment to $20,000.

[5]

We
    are not persuaded, however, that the respondent is entitled to the costs award
    made by the application judge.  In our view, the principal basis for the
    respondents success on the application was the application judges erroneous
    conclusion that the Assessment Officer evinced a reasonable apprehension of
    bias towards the respondent.  While the respondents application was warranted,
    her partial success should be reflected in a more modest costs award of $8,000.

[6]

For
    these reasons, the respondent is entitled to her partial indemnity costs of the
    assessment in the amount of $20,000 and of the application in the amount of $8,000,
    both inclusive of disbursements and applicable taxes.  We also order that the
    respondent may offset the $10,000 costs award granted to the appellants on the appeal
    against the $28,000 in costs owing to her by the appellants.

K. Feldman J.A.

L.B. Roberts J.A.

Fairburn J.A.


