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Contempt - Costs. Castillo v. Xela Enterprises Ltd.
In Castillo v. Xela Enterprises Ltd. (Ont CA, 2024) the Court of Appeal considers 'costs' awards, here in a contempt matter:Issues on the Costs Appeal
[111] The appellant seeks leave to appeal the award of full indemnity costs on the basis that the motion judge made factual and legal errors that warrant the intervention of this court. This part of the appeal was heard in writing.
Analysis
[112] First, the appellant argues that the motion judge erred by treating the award of costs by Newbould J. following the decision granting judgment in the underlying action, and this contempt hearing as comparable. He argues that those costs were awarded to compensate for a five-year long, hotly contested, complex action, while this was a simple, two-day contempt motion. In addition, the motion judge stated that both sides delivered several affidavits with voluminous exhibits, while in fact, the appellant did not deliver an affidavit. The respondent disputes the appellant’s objections, pointing out that the Receiver was required by the appellant to produce voluminous documentary disclosure in addition to the appellant’s 4207-page amended exhibit book. The appellant also required the Receiver to provide viva voce evidence of two witnesses, and in addition, the appellant unexpectedly testified. There were five days of evidence and submissions on the contempt phase as well as two further affidavits from the Receiver on the penalty phase and two further attendances.
[113] There is no merit to the appellant’s submission. No one knows better than the motion judge how long or complex the proceeding was and how the conduct of each side contributed to the length and complexity. Her findings are entitled to the deference of this court. It is not this court’s role to examine the record to challenge those findings.
[114] The appellant also challenges the motion judge’s ability or authority to award full indemnity costs. He argues that the motion judge awarded costs on the highest level to punish the appellant for vigorously defending the contempt charge and to compensate the Receiver for having to meet the standard of proof beyond a reasonable doubt.
[115] The motion judge made no such error. She referred to a number of Superior Court civil contempt decisions where costs were awarded on the full indemnity scale. She justified her decision in this case based on the extremely serious, egregious wrongdoing by the appellant which “demonstrated an astounding lack of respect for this court.” ...
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