Court of Appeal for Ontario
Before: Laskin, Armstrong and Lang JJ.A.
Between:
Gary Matthews (and the persons listed on Schedule "A" hereto)
Applicants (Appellants)
and
Algoma Timberlakes Corporation
Respondent (Respondent in Appeal)
Counsel:
Robert G. Doumani, for the appellants
Joseph J. M. Hoffer and Kristin A. Carnie, for the respondent
Heard: October 28, 2009
On appeal from the order of the Divisional Court (Wright, Heeney and Pierce JJ.), dated January 5, 2009.
ADDENDUM
1In allowing the appeal, this court granted the successful appellants costs fixed in the agreed-upon amount of $3,000, inclusive of disbursements and GST. Following the release of our reasons, we received submissions addressing the appropriate disposition of the costs of $15,000 awarded by the Divisional Court to the respondent.
2The issue of the appropriate disposition of the Divisional Court costs was not addressed on the appeal either in argument or in our reasons. Nonetheless, our disposition of the appeal set aside the Divisional Court order with the result that no costs were payable by either the appellants or the respondent for the proceedings before that court. In its submissions, the respondent argues that the Divisional Court costs award should be reinstated, while the appellants argue that they are entitled to costs fixed at $15,000.
3Counsel agree, when an appeal is allowed, that the order under appeal is generally set aside and the costs below are awarded to the successful appellant: see St. Jean (Litigation Guardian of) v. Cheung, 2009 ONCA 9, [2009] O.J. No. 27 (C.A.) at para. 4. However, the parties have different views of the success achieved by the appellant.
4In our view, the Divisional Court decision in favour of the respondent was largely based on its interpretation of "residential", which it found was informed by the legislative provisions regarding a landlord's obligation to provide services. In allowing the appeal, this court came to a different interpretation of "residential".
5In these circumstances, we see no reason not to follow the general disposition of the costs below. Accordingly, an order will go awarding costs before the Divisional Court to the appellants fixed in the amount of $15,000, inclusive of disbursements and applicable taxes.
"John Laskin J.A."
"Robert P. Armstrong J.A."
"S.E. Lang J.A"
Schedule "A"
Schedule of Parties
APPLICANTS/TENANTS
Ralph Aiello
Leonard Ambeault
Brian Avery
Doug J. Baker
Chuck Barbeau
John Bauer
Alfred Behrens
Bruce Belisle
Jacalyn Bolinger
Ward Boyd
Jack Breckenridge
Nick Buconjic
Ed Camirand
John Carson
Elaine Carter
Kevin Case
Bill Chamberlin
Ronald Champagne
Andy Chyc
Thomas Clegg
Chris Copper
John Crack
Paul Curran
John De Francesco
Donald E. Deluney
Melinda Deziel
Douglas Digby
Harvey Eisler
Norman Elliott
Gini Fata
James Forbes
Ray Goulet
Lou Gremban
Gennie Gritton
Eric Guindon
George Hamilton
Merlyn Hawdon
John Hayes-Sheen
Lynda Hazelton
Bill Hore
Raymond Hyde
Bill Iles
Douglas Iles
Carol Jannison
John Jikinosky
Joe Jollineau
Esko Koskela
Zoltan Kovacs
Roberta Kurtz
Sandra Ladouceur
Steven Leffler
Evan Lewis
Hugh A. Lowe
James MacDonald
Roderick MacMillan
Timmothy Marlin
Nick Matechuk
Bob Matthews
Gary Matthews
Malcolm E. Matthews
Richard May
Brian McAdam
Clark McDonnell
Pearl McLean
Ross Milne
Stephen Najmy
Gerald Odber
Tom Odber
John Pavoni
Gordon Pickard
Alfred Poirier
Gary Premo
Harry Premo
Andre Quesnelle
Ronald Rancourt
John Reamer
Daniel Rice
Mike Rollin
Randy Rose
Nick Ruicci
Donald Sadowski
Richard Sibilo
Robert M. Siegwart
Stephan T. Smith
John Spadafore
Sam Stasiuk
Denise Strachan
Steve Tarabas
Gerald Thibodeau
Raymond Tourigny
Erik Tuomi
Ron Venn
William Weigle
Martin White
George Wilks
Daniel Williams
Earl J. Wilson
Mike Wilson
Paul F. Wilson
Robert J. Zufelt
RESPONDENT/LANDLORD
Algoma Timberlakes Co.