United States of America v. Yemec, 2010 ONCA 623

CITATION: United States of America v. Yemec, 2010 ONCA 623

DATE: 20100928

DOCKET: M38993(C51083)

COURT OF APPEAL FOR ONTARIO

Moldaver, MacPherson, and Watt JJ.A.

BETWEEN

The United States of America and United States Federal Trade Commission

Plaintiffs (Appellants)

and

George Michael Yemec, Anita Fern Rapp, Steven Lawrence Rapp, Paul Churchill Teskey, Jean-Paul C. Teskey, Julia F. Bungaro, William Dean Temple, Jr., Yvonne Buckingham, Florence Mary Teskey, World Media Brokers Inc., 1165107 Ontario Inc., Faby Games Inc., 624654 Ontario Limited, 637736 Ontario Limited, 537721 Ontario Inc., Express Marketing Services Ltd., 364058 B.C. Ltd., 331216 B.C. Ltd., Intermarketing Services Inc., Cash & Prizes, Inc., Cash & Prizes Inc., Taras Voloshchuk (A.K.A. Terry Woloschuk), Canadian Subscription Services, 1306051 Ontario Inc., 377414 Ontario Inc., O/A World Media Brokers, Dial-A-Million Inc., Telegroup Inc., O/A Market Monitor, 747321 Ontario Inc., Grand Print Inc., Jackpots & Prizes, Nelson Bunting, 599026 Ontario Inc. and Express Purchase Services Ltd.

Defendants (Respondents)

Glenn Hainey, Malcolm N. Ruby and Duncan C. Boswell, for the appellants

David E. Wires and Saba Ahmad, for the respondents

On a motion in writing to amend the judgment of Justices Moldaver, MacPherson and Watt dated June 8, 2010, allowing the appeal in part and dismissing the cross-appeal from the order of Justice Edward P. Belobaba of the Superior Court of Justice, dated August 26, 2009, with reasons reported at (2009), 2009 44418 (ON SC), 97 O.R. (3d) 409.

ENDORSEMENT

[1] The appellants bring a motion to amend the court's order dated 8 June 2010 to address the issue of the costs granted by the motions judge. The court's order, and the reasons for judgment of same date, do not address this issue.

[2] We have reviewed the motion record, the appellants' factum dated 14 July 2010, the respondents' factum dated 30 July 2010, the appellants' reply factum dated 4 August 2010, and the respondents' sur-reply factum dated 18 August 2010.

[3] The appellants did not mention the motion judge's costs award in their two Notices of Appeal. The appellants did not mention the motion judge's costs award anywhere in their 40-page factum, including in paragraph 92 where they set out the relief they sought in the appeal. Nor did the appellants raise this issue in their oral argument.

[4] In short, it is too late for the appellants to raise the issue of the costs ordered by the motion judge. The proposed motion raises issues that are not straightforward and should, at a minimum, have been raised in the appeal documents, appeal factum, oral argument or in the parties' earlier written cost submissions. In the circumstances, we believe it would be unfair and prejudicial to the respondents to allow the motion to go forward at this time. Accordingly, we decline to hear it on the merits.

[5] The motion is dismissed with costs to the respondents fixed at $5000 inclusive of disbursements and applicable taxes.

"J. C. MacPherson J.A."

"M. Moldaver J.A."

"David Watt J.A."