COURT OF APPEAL FOR ONTARIO

CITATION: Perlmutter v. Smith, 2020 ONCA 611

DATE: 20200929

DOCKET: C68404

Lauwers, Brown and Nordheimer JJ.A.

BETWEEN

Isaac (“Ike”) Perlmutter and Laura Perlmutter

Applicants (Respondents)

and

David Smith

Respondent (Appellant)

AND BETWEEN

Harold Peerenboom

Applicant (Respondent)

and

David Smith

Respondent (Appellant)

Counsel:

Jordan Goldblatt and Jordan Katz, for the appellant

Jerome Morse and David Trafford, for the respondent Harold Peerenboom

Winston Fogarty and Pavle Masic, for the respondents Isaac Perlmutter and Laura Perlmutter

Heard: in writing

On appeal from the order of Justice Thomas R. Lederer of the Superior Court of Justice dated May 11, 2020, with reasons reported at 2020 ONSC 2679, and costs reasons reported at 2020 ONSC 4722.

COSTS ENDORSEMENT

[1] On September 11, 2020, we released our decision in which we dismissed Mr. Smith’s appeal and denied Mr. Smith leave to appeal a costs order. We invited the parties to make written submissions on the costs of the appeal. We have now received and reviewed those submissions.

[2] The appellant says that all parties should bear their own costs of the appeal. He says that this result would be consistent with the decision of the application judge who ordered no costs with respect to the matters before him. The appellant also says that it is impractical and inappropriate to award costs in light of the ongoing litigation in Florida, where these issues will be resolved and costs can be sought.

[3] The Perlmutter respondents seek costs of $10,000 from the appellant and $5,000 from the respondent Peerenboom. The Perlmutter respondents say that the appellant should have to pay costs because he was entirely unsuccessful in his appeal. They say that the respondent Peerenboom should have to pay some costs because he unduly complicated the issues involved in the appeal. The Perlmutter respondents say that the amount that they seek for costs is reasonable in all of the circumstances.

[4] The respondent Peerenboom says that he made a number of offers to settle the appeal, all of which were rejected. As a consequence, the respondent Peerenboom seeks substantial indemnity costs payable by Mr. Smith and the Perlmutters in the amount of $50,000. In the alternative, he seeks his partial indemnity costs of $33,500.

[5] In our view, it is appropriate for all of the parties to bear their own costs. In reaching that conclusion we have taken into account a number of factors. One is that the application judge reached that same conclusion with respect to the matters that were before him. We agree with his observation, at para. 15 of his costs reasons:

In the circumstances of this case it is not possible to meaningfully decide the issue of costs without knowing the ultimate results of the two actions.

[6] Another is that, as this court noted in its reasons at para. 75: “The jurisprudence does not establish any bright line rule regarding the award of costs on successful applications to enforce letters of request.”

[7] Yet another is that offers to settle are generally not considered in deciding costs in this court. Rule 49 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 does not apply to appeals. That said, an offer to settle an appeal prior to argument may be taken into account when fixing costs but this power is exercised only on rare occasions: Smith Estate v. Rotstein, 2011 ONCA 833 at para. 16. This is not one of those rare occasions.

[8] In the end result, we order that all parties shall bear their own costs of the appeal.

“P. Lauwers J.A.” “David Brown J.A.”

“I.V.B. Nordheimer J.A.”