DATE: 20030114

DOCKET: C34697

COURT OF APPEAL FOR ONTARIO

RE: Peter Marchese, Estate Trustee for the Estate of Giulia Marchese, deceased (Petitioner/Respondent on Appeal/Appellant by Cross-appeal) and Pasquale Marchese, 621209 Ontario Ltd., Superior Sodding Co. Ltd., and Joseph Falco (Respondents/Appellants/Respondents by Cross-Appeal)

BEFORE: MORDEN, MOLDAVER, AND SIMMONS JJ.A.

COUNSEL: A. Burke Doran, Q.C.

Jacqueline Mills

For the appellants, respondents by cross-appeal, Pasquale Marchese and 621209 Ontario Ltd.

Massimo Rovazzi

For the respondent by cross-appeal, Joseph Falco

P. D. Schmidt

G. Karahotzitis

For the respondent, appellant by cross-appeal

HEARD: September 24, 2002

On appeal from a judgment of Justice Mary Anne Sanderson of the Superior Court of Justice dated June 30, 2000

COSTS ENDORSEMENT

[1] In our endorsement dismissing the appeal and cross-appeal, we stated that, subject to submissions, there would be no order as to costs as success on appeal was divided. However, we accept Mr. Falco’s submission that, because his sole involvement in the appeal was as a respondent by cross-appeal, he was, in fact, a successful party.

[2] No basis has been demonstrated for departing from the usual practice that costs should follow the event. Assuming that Mr. Marchese paid Mr. Falco’s legal fees relating to the appeal, that, in itself, does not deprive Mr. Falco of his claim for costs. Rather, it may oblige Mr. Falco to account to Mr. Marchese for any costs that Mr. Falco actually recovers.

[3] Based on the material submitted, Mr. Falco’s costs of the cross-appeal are fixed at $5000 on a partial indemnity basis, $419.95 for disbursements, and applicable G.S.T.

“J. W. Morden J.A.”

“M.J. Moldaver J.A.”

“Janet Simmons J.A.”