



COURT OF APPEAL FOR ONTARIO

CITATION: Thistle v. Schumilas, 2020 ONCA
    248

DATE: 20200408

DOCKET: C66432

Watt, Hourigan and Trotter JJ.A.

BETWEEN

Jason Michael Thistle

Plaintiff
    (Respondent)

and

James Schumilas, Jr.
, WCS Financial Services,
    Cinaber Financial Inc. and Bridgeforce Financial Group Inc.

Defendants (
Appellant
)

Marie Sydney, for the appellant

Sean Zeitz, for the respondent

Heard: In writing

On appeal from the order of Justice
    Catrina D. Braid of the Superior Court of Justice, dated December 21, 2018.

COSTS ENDORSEMENT

[1]

The appellant was successful on his appeal and
    was awarded costs of the appeal in the all-inclusive sum of $10,000. This court
    also ordered that the appellant is entitled to his costs of the motion and
    cross-motion in the Superior Court. Further, we ordered that, to the extent
    that there are costs of the action below other than the costs of the motion and
    cross-motion, the appellant is
prima facie
entitled to those costs
    given that the respondents action has been dismissed.

[2]

We have been advised that the parties cannot
    agree on the costs of the motion and cross motion or the other costs of the
    action. They have filed written submissions on these issues.

[3]

The appellant seeks its partial indemnity costs
    of the motion and cross-motion in the amount of $36,889, and its other costs of
    the action on a partial indemnity basis in the amount of $71,614. The total
    amount claimed is $108, 503.

[4]

The respondent submits that the appellant should
    receive no indemnity for costs incurred after the close of pleadings because it
    waited for several years to bring its summary judgment motion to dismiss the
    action. He argues that this delay constitutes special circumstances that
    disentitle the appellant from recovering his costs after the close of
    pleadings.

[5]

We are not satisfied that special circumstances
    have been established. There was delay in bringing the motion, but the
    respondent has been aware of the appellants position that he does not have
    standing to bring the action since discoveries. Neither party took steps to
    deal with this issue expeditiously or in the least expensive way possible in
    the circumstances. The costs consequences of this should not be borne solely by
    the appellant.

[6]

The appellant, as the successful party, is
    entitled to his costs below. However, we find that the total amount claimed is
    excessive, given the straightforward nature of the case and the amounts in
    issue. Therefore, we order that the respondent pay the appellant his costs of
    the action, including his costs of the motion and cross-motion, in the all-inclusive
    sum of $75,000.

David Watt J.A.

C.W. Hourigan J.A.

Gary Trotter J.A.


