Court of Appeal for Ontario

Date: 2017-01-16 Docket: C60787

Judges: Rouleau, van Rensburg and Benotto JJ.A.

Between

Sarbjit Singh Plaintiff (Appellant)

and

Donald John Trump Sr., Trump Toronto Hotel Management Corp., Trump Marks Toronto LP, Talon International Inc., Talon International Development Inc., Val Levitan, Alex Shnaider and Toronto Standard Condominium Corporation No. 2267 Defendants (Respondents)

And Between

Se Na Lee Plaintiff (Appellant)

and

Donald John Trump Sr., Trump Toronto Hotel Management Corp., Trump Marks Toronto LP, Talon International Inc., Talon International Development Inc., Val Levitan, Alex Shnaider and Toronto Standard Condominium Corporation No. 2267 Defendants (Respondents)

Counsel

Mitchell Wine and Kevin D. Sherkin, for the appellants

Symon Zucker, Melvyn L. Solmon and Nancy J. Tourgis, for the respondents

Heard: June 23, 2016

On Appeal

On appeal from the orders of Justice Paul M. Perell of the Ontario Superior Court of Justice, dated July 10, 2015, with reasons reported at 2015 ONSC 4461, 47 B.L.R. (5th) 269.

Costs Endorsement

1In our October 13, 2016 decision, we allowed the plaintiffs' appeal from the dismissal of their motions for partial summary judgment. Among other relief we awarded the plaintiff, Sarbjit Singh, rescission of his agreement of purchase and sale and awarded the plaintiff, Se Na Lee, damages as against Talon International Inc. The calculation of Ms. Lee's damages was, however, left to be determined by the Superior Court of Justice in the continuing proceedings.

2The two cases on appeal were said to be representative of claims in 20 other outstanding actions against the same defendants. Those 20 other matters, as well as other aspects of the claims brought by the two appellants, remain to be determined.

3Further, our October 13 decision confirmed that the partial summary judgment motion brought against Alex Shnaider, Val Levitan and Donald J. Trump Sr. was properly dismissed. It also provided, however, that the claims that were not the subject of the partial summary judgment motions against these three defendants could proceed.

4Finally, our October 13 decision awarded costs of the appeal to the appellants and provided that if the parties could not agree on the costs of the original summary judgment motions, brief submissions in writing could be made. Those submissions have now been received.

Appellants' Position on Costs

5The appellants argue that they should be awarded the costs of their actions through to the partial summary judgment motions, with partial indemnity costs up to the date of their offers to settle and substantial indemnity costs thereafter under rule 49 of the Rules of Civil Procedure. They seek a total of $235,661.69 including fees, disbursements and applicable taxes.

Respondents' Position on Costs

6The respondents argue that the offers to settle were not capable of acceptance because they were not for a fixed amount as they provided for the accrual of interest. The respondents further submit that the offers ought not to be considered as they required acceptance not only of settlement of the appellants' claims but also of the claims in the 20 other similar actions that are outstanding. They also maintain that the costs claimed are too high as they include the costs of litigating all of the 22 actions against the respondents. Further, they argue that the amount claimed for costs assumes that the appellants' actions are now complete whereas, as noted above, aspects of those claims remain outstanding including the calculation of Ms. Lee's damages. Finally, they note that the summary judgment motions against the three individual defendants were dismissed and maintain that those defendants are therefore entitled to their costs.

Court's Analysis

7In our view, the offers to settle do not, as the respondents suggest, require that the respondents agree to settle all 22 outstanding actions brought against them. The offers contemplate settlement on a case by case basis, although the proposed terms of settlement are the same for all of the similar claims. Nor does the provision for interest in those offers to settle, which referred to interest to be paid pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, make them not capable of acceptance and not compliant with rule 49. This said, however, determining appropriate costs for the summary judgment motions is not straightforward.

8There is no dispute that the appellants ought to be awarded their costs of the summary judgment motions other than the portion of the costs relating to the partial summary judgment motions against the three individual defendants. It is apparent from the materials filed that the costs relating to that portion of the partial summary judgment motions constitutes only a small fraction of the costs incurred.

9The difficulty lies in setting the appropriate amount. Our decision awards partial summary judgment to the appellants but it is not yet clear whether the appellants will be proceeding with the other aspects of their claims and, as noted earlier, the Superior Court must still determine the amount of Ms. Lee's damages.

10The appellants maintain, however, that they should be awarded their costs of the entire actions. In any event, they argue that of the $184,821.50 in fees claimed, fully $154,427 of this amount was incurred for the summary judgment motions themselves. None of the costs relate to the other 20 similar claims. They also maintain that substantial indemnity costs of the partial summary judgment motions are appropriate as the amount awarded exceeds the amount of their offers to settle the appellants' entire claims.

Court's Decision

11In these unusual circumstances, we consider it appropriate to make a significant award of costs for the partial summary judgment motions. We do not consider it appropriate to award costs for the entire actions as the claims are still ongoing. As a result, we effect a significant reduction to the amount claimed to account for the dismissal of the partial summary judgment motions as against the three individual defendants, as well as the fact that a significant portion of the amount claimed does not relate to the summary judgment motions themselves.

12We therefore award the appellants their costs of the partial summary judgment motions in the court below, fixed in the amount of $180,000, inclusive of disbursements and applicable taxes.

13As the motions for partial summary judgment were dismissed as against the three individual defendants, those defendants are entitled to their costs of the original motions on a partial indemnity basis. Their involvement in the partial summary judgment motions was quite limited and, as a result, we consider that the amount of $10,000 proposed by the respondents is too high. An appropriate award is $7,000, inclusive of disbursements and applicable taxes.

Paul Rouleau J.A. K. van Rensburg J.A. M.L. Benotto J.A.