



COURT OF APPEAL FOR ONTARIO

CITATION: 1704604 Ontario Ltd. v. Pointes Protection
    Association, 2018 ONCA 853

DATE: 20181024

DOCKET: C62231

Doherty, Brown and Huscroft JJ.A.

BETWEEN

1704604 Ontario Ltd.

Plaintiff (Respondent)

and

Pointes Protection Association, Peter Gagnon, Lou
    Simionetti, Patricia Grattan, Gay Gartshore, Rick Gartshore and Glen Stortini

Defendants (Appellants)

Mark Wiffen, for the appellants

J. Paul R. Cassan and Tim J. Harmar, for the respondent

Heard: December 19, 2016, and June 27, 2017

On appeal from the order of Justice
Edward
    E.
Gareau of the Superior Court of Justice, dated May 9, 2016, with
    reasons reported at 2016 ONSC 2884, 84 C.P.C. (7th) 298.

COSTS ENDORSEMENT

[1]

In our view the costs presumptions in s. 137.1(7) and (8)
    of the
Court of Justice Act,
R.S.O. 1990, c. C.43,

do not apply on appeal. Those
    presumptions affect significant departures from the principles generally
    governing cost awards on appeals. It would take clear statutory language to
    warrant that departure. The language of the provisions, which does not
    expressly refer to costs on appeals, does not have that clarity.

[2]

In holding that s. 137.1 (7)(8) are not applicable on appeal
    we do not mean to say that the principles reflected in those provisions have no
    role in this courts exercise of its discretion with respect to costs in
    appeals from motions brought under s. 137.1. This courts discretion on costs
    is broad enough to reflect the justice of the individual case and where
    appropriate to have due regard to the policy underlying the cost regime created
    by s. 137.1(7)(8).

[3]

In so far as the costs of the motion are concerned, we would
    apply the presumption in s. 137.1(7). The appellants should have their costs on
    a full indemnity basis fixed in the amount of $30,800, inclusive of taxes and
    disbursements. The appellants should have their costs of the appeal on a
    partial indemnity basis fixed at $17,147.57.

[4]

There are no grounds for an order of costs as against the
    non-parties, Dr. Patricia Avery and Mr. Jeff Avery. No such order will be made.

Doherty J.A.

David Brown J.A.

Grant Huscroft J.A.


