Court of Appeal for Ontario

Date: 20211124 Docket: C69156

Strathy C.J.O., Pepall and Pardu JJ.A.

Parties

BETWEEN

Thrive Capital Management Ltd., Thrive Uplands Ltd., 2699010 Ontario Inc. and 269901 Ontario Inc. Plaintiffs (Respondent)

and

Noble 1324 Queen Inc., Michael Hyman Giuseppe Anastasio, David Bowen, Noble Developments Corporation, Hampshire and Associates Incorporated, Lisa Susan Anastasio, Rajeree Etwaroo and Con-Strada Construction Group Inc. Defendants (Appellants)

Counsel

Justin Necpal, Justin H. Nasseri and Joshua Ng, for the appellants Brian N. Radnoff and Joshua Suttner, for the respondents

Heard

September 15, 2021 by video conference

On Appeal From

The judgment of Justice Markus Koehnen of the Superior Court of Justice, dated January 21, 2021.

Costs Endorsement

[1] The issues of costs awarded by the motion judge and the costs of the appeal remain. The motion judge awarded the plaintiffs costs of $36,011.97 for the costs of the hearing to determine whether the defendants were in contempt, $48,816.31 for the costs of the hearing to determine the sanction to be applied for contempt, and as he granted judgment to the plaintiffs, $109,142.80 for the costs of the action. The finding of contempt was not contested; however, the sanction – judgment in the action – was set aside and the matter was remitted to the Superior Court for determination of the sanctions to be imposed for contempt, or other issues that might be raised together with that issue.

[2] Since the finding of contempt was not challenged, we see no basis to intervene in that award. Given the conduct of the defendants, and the difficulty in persuading them to disclose their assets, those costs in the sum of $36,011.97 should be paid from the $70,000 that the defendants were ordered to post as security for costs of the appeal and of the proceedings.

[3] The defendants were successful in setting aside the sanction ordered because there were procedural flaws in the process followed to determine the appropriate sanction. Their contemptuous conduct, however, is the root cause of the proceedings that followed. Under those circumstances, we set aside the costs awards of $48,816.31 for the sanctions hearing, and the costs of the action in the sum of $109,142.80 and order no costs for those steps in the proceeding at this time. For the same reason, we would order no costs on the appeal.

[4] As it seems likely that these proceedings will continue, and some form of sanction for contempt will be imposed against the defendants, the remaining funds held in court as security for the appeal and the proceedings below will continue to be held in court, to be applied to any future costs award in favor of the plaintiffs.

“ G.R. Strathy C.J.O. ” “S.E. Pepall J.A.” “G. Pardu J.A.”