Court of Appeal for Ontario

Date: 2022-05-17 Docket: C69053

Simmons, Harvison Young and Zarnett JJ.A.

BETWEEN

Kelly Martin Applicant (Respondent)

and

11037315 Canada Inc. , 2670082 Ontario Corp. , and Autodome Ltd. Respondents (Appellants)

Counsel: Paul Robson and Samir Chhina, for the appellants Dennis Van Sickle, for the respondent Marc Whiteley and Monty Dhaliwal, for the non-party 1614358 Ontario Ltd. Karanpaul Randhawa, for the non-party Ranjit Singh Pandher

Heard: February 22, 2022 by video conference

On appeal from the order of Justice Michael R. Gibson of the Superior Court of Justice, dated December 23, 2020, with reasons reported at 2020 ONSC 8087.

Costs Endorsement

[1] In reasons released on April 27, 2022, we rejected the appellants’ claim that the application judge erred in setting aside a default judgment for foreclosure obtained by the appellant 11037315 Canada Inc. (“1103”) and directed that there be an accounting by 1103 to the respondent, Kelly Martin, with respect to its sale of the subject property to the appellant, 2670082 Ontario Corp. (“267”). However, we set aside the application judge’s order that the subject property, now registered in the name of 267, be sold, and ordered that there be a trial of an issue concerning whether 267 should be entitled to the protection of s. 78(4) of the Land Titles Act, R.S.O. 1990, c. L.5. or whether the subject property should be sold under Ms. Martin’s request for sale, subject to any steps taken by the non-party mortgagees in the interim.

[2] Contrary to 1103’s submissions, Ms. Martin was wholly successful on appeal as against 1103. As we have said, we rejected 1103’s claim that the application judge erred in setting aside 1103’s default judgment for foreclosure. Accordingly, we accept Ms. Martin’s request that 1103 pay 50% of her partial indemnity costs of the appeal. It is ordered that 1103 pay to Ms. Martin partial indemnity costs fixed in the amount of $6,243.09, inclusive of disbursements and HST.

[3] 267 achieved partial success on appeal in that we set aside the application judge’s order for sale of the subject property. However, we did not make a finding that 267 is a bona fide purchaser for value without notice and the question whether 267 will ultimately be successful in resisting Ms. Martin’s claim for sale of the property must abide the result of the trial of the issue. Moreover, 267’s partial success was premised entirely on s. 78(4) of the Land Titles Act, an issue 267 raised for the first time on appeal.

[4] 267 and 1103 have requested substantial indemnity costs of the appeal in the amount of $73,052.46, or, in the alternative, partial indemnity costs of $49,113.97.

[5] As noted above, Ms. Martin is entitled to costs of the appeal against 1103. We consider the amounts claimed for costs by 267 and 1103 excessive. In the circumstances, it is ordered that the costs of the appeal as between 267 and Ms. Martin are fixed on a partial indemnity scale inclusive of disbursements and HST in the amount of $6,200 and are payable in the cause of the trial of the issue.

“Janet Simmons J.A.”

“A. Harvison Young J.A.”

“B. Zarnett J.A.”