COURT OF APPEAL FOR ONTARIO
CITATION: Boyer v. Callidus Capital Corporation, 2023 ONCA 311
DATE: 20230502
DOCKET: C70855
Gillese, Benotto and Coroza JJ.A.
BETWEEN
Craig Boyer
Plaintiff
(Appellant/Defendant by Counterclaim)
and
Callidus Capital Corporation
Defendant
(Respondent/Plaintiff by Counterclaim)
Peter Griffin and Jonathan McDaniel, for the appellant
David Moore and Ken Jones, for the respondent
Heard: February 24, 2023
On appeal from the order of Justice Peter J. Cavanagh of the Superior Court of Justice, dated June 23, 2022.
COSTS ENDORSEMENT
[1] The parties have made submissions as to costs of the r. 137.1 motion determined by this court. The successful appellant claims $273,111.22[1] on full indemnity basis. The respondent submits that this is excessive and the amount should be reduced to $90,000. It points to this court’s decision in Park Lawn Corporation v. Kahu Capital Partners, 2023 ONCA 129 where Pepall J.A. spoke of the high costs of a r. 137.1 motion and offered a guideline of $50,000 in costs for a successful plaintiff.
[2] We do not accept the respondent’s submissions.
[3] There is a statutory presumption that the successful party be awarded full indemnity costs unless the judge determines that the award is not appropriate in the circumstances. S. 137.1(7) provides:
If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. 2015, c. 23
[4] The award is appropriate. Upon receipt of the statement of claim the respondent counterclaimed for $150 million alleging breach of a fiduciary duty. The claims were bald and unsubstantiated.
[5] The costs of the motion are fixed in the amount of $273, 111.22 inclusive of disbursements and HST.
“E.E Gillese J.A.”
“M.L. Benotto J.A”
“S. Coroza J.A.”