



COURT OF APPEAL FOR ONTARIO

CITATION: Moore v. Getahun, 2015 ONCA 443

DATE: 20150617

DOCKET: C58338

Laskin, Sharpe and Simmons JJ.A.

BETWEEN

Blake Moore

Respondent

and


Dr. Tajedin Getahun
,
    The Scarborough Hospital  General Division,

Dr. John Doe and
    Jack Doe

Appellant

J. Thomas Curry and Jaan E. Lilles, for the appellant

Paul J. Pape and Joanna Nairn, for the respondent

Matthew Gourlay and Samuel Walker, for the intervener
    Criminal Lawyers Association

Richard Halpern and Brian Cameron, for the intervener
    Ontario Trial Lawyers Association

William D. Black, Jerome R. Morse and John J. Morris,
    for the intervener The Holland Group

John A. Olah and Stephen Libin, for the intervener
    Canadian Defence Lawyers Association

Courtney Raphael, for the intervener Canadian Institute
    of Chartered Business Valuators

Linda R. Rothstein and Jean-Claude Killey, for the
    intervener The Advocates Society

Heard: September 22, 23, 24, 26, 2014

On appeal from the judgment of Justice Janet M. Wilson
    of the Superior Court of Justice, dated January 14, 2014, with reasons reported
    at 2014 ONSC 237.

COSTS ENDORSEMENT

[1]

We have now received written submissions from the parties with respect
    to the costs of this appeal. The respondent has submitted a bill of costs
    claiming costs at a partial indemnity rate inclusive of disbursements and taxes
    in the amount of $83,875.85. The appellant submits that as the appeal involved
    issues of public importance, no costs should be awarded.

[2]

In our view, as the respondent was the successful party, he is entitled
    to his costs of the appeal. While the appeal did involve an issue of public
    importance, that is the case for many appeals to this court. It is only where
    an issue is truly novel or a matter of first impression that a departure is
    warranted from the normal rule that a successful party is entitled to partial
    indemnity for costs. The issue raised in this appeal was not of that character.

[3]

Nor do we accept the appellants alternate submission that the
    respondents costs should be reduced to one third of the amount claimed to
    reflect the fact of both the appellants success on the point of public
    importance and the dismissal of the appeal on the narrower ground the trial
    judges error on the issue of public importance did not affect the outcome.

[4]

While the respondent did raise certain issues in his factum relating to
    the issue of public importance, those issues were not pursued in oral argument.
    The respondents submissions were focused precisely on the point upon which he
    succeeded. We agree with the respondent that to reduce his costs to one third
    would amount to a distributive costs award that is not favoured by this court.

[5]

As this appeal was argued over four days, albeit in conjunction with the
    related appeal in
Westerhof v. Gee Estate
, 2015 ONCA 206, and as the
    appellant has taken no issue with the quantum claimed by the respondent apart
    from the submission that we should make a distributive costs award, we award
    the respondent costs in the amount claimed, namely, $83,875.85, inclusive of
    disbursements and taxes.

John Laskin J.A.

Robert J. Sharpe J.A.

Janet Simmons J.A.


