DIVISIONAL COURT FILE NO.: 181/04
DATE: 20040622
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
D.L.T.E. HOLDINGS LTD. and DIANE WILLIAMS
Respondents/Plaintiffs
- and -
HORSESHOE RESORT CORPORATION, NORMAN H. ALLEN, LORNE BORGAL, RICHARD ANDREWS, TREVOR GRAHAM, GARTH DEAN, WERNER DEFILLA, MARTIN KIMBLE and TERRY RANDALL
Appellants/Defendants
G.M. Sidlofsky, for the Appellants/Defendants
K.W. McKenzie, for the Respondents/Plaintiffs
HEARD at Toronto: April 22, 2004
O’DRISCOLL J.:
I. Nature of Proceedings
[1] The litigation between the parties is under the Class Proceedings Act (CPA). The litigation was commenced in 1996. Counsel advise that the action was certified on consent.
[2] On March 26, 2003, the Plaintiffs brought a motion to bifurcate the trial and order the trial of an issue to determine whether payments made by the Plaintiffs to the Defendants pursuant to para. 7 of the Timeshare Vacation Purchase Agreement were impressed with a specific trust or established a fiduciary relationship between the parties.
[3] On May 16, 2003, J.H. Jenkins J. made an order “that there be a trial to determine whether payments made pursuant to the Timeshare Vacation Purchase Agreement were impressed with a specific trust or established a fiduciary relationship with the plaintiffs by the defendants”. Para. 2 of the same order states that “the costs of this motion are reserved to be dealt with by further order of the court”.
[4] The Defendants brought a motion under s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 and Rule 62.02(4)(a) and (b) of the Rules of Civil Procedure for leave to appeal to the Divisional Court from the May 16, 2003 order of J.H. Jenkins J. The motion was argued at Barrie, Ontario on July 15, 2003 before Salmers J. Leave was granted with costs reserved to the panel of the Divisional Court hearing the appeal.
[5] Thereupon, the Defendants/Appellants served and filed a Notice of Appeal, dated July 22, 2003.
[6] In a letter to the solicitors for the Defendants, dated August 29, 2003, the solicitors for the Plaintiffs said:
Further to our discussion, it is the intention of the Plaintiffs that we discontinue the appeal of Justice Jenkins’ order of May 16, 2003, and that we agree that His Honour’s Order be treated as though it was set aside. The Plaintiff’s will be pursuing another avenue, and consequently the outcome of the appeal is no longer relevant, and there is no reason for either party to incur the costs associated with continuing the appeal.
With respect to costs, the Plaintiffs were successful at the first instance before Justice Jenkins. You were successful on the motion for leave to appeal. Consequently, as success has been divided, we propose that no costs be awarded on either motion, and consequently that the appeal be abandoned without costs.
We trust that this is satisfactory.
[7] In a letter, dated September 19, 2003, to the solicitors for the Defendants, the solicitors for the Plaintiffs said, in part:
We are prepared to agree that costs be ordered in the cause and have them dealt with after judgment.
[8] The Defendants did not find the Plaintiffs’ proposal to be “satisfactory”.
[9] Counsel advise me that the Plaintiffs now propose to bring a motion for summary judgment.
[10] Counsel for the Appellants/Defendants bring this motion and seek an order:
(a) Fixing the costs on the motion before J.H. Jenkins J. (March 26, 2003);
(b) Fixing the costs on the motion for leave to appeal before Salmers J. (July 15, 2003);
(c) Fixing the costs of the abandoned appeal;
(d) Fixing the costs on this application, heard on April 22, 2004.
II. Conclusions
[11] No reason has been shown to me why the Appellants/Defendants should not have their costs on a partial indemnity basis before J.H. Jenkins J., on the motion for leave to appeal before Salmers J., their costs of the abandoned appeal and their costs of this motion.
[12] Counsel for the Appellants/Defendants, in Tab “L” of his Motion Record, has included a draft Bill of Costs covering the costs claimed, except for the April 22, 2004 motion. A separate draft Bill of Costs has been submitted for that date.
[13] Costs are fixed as follows:
Preparation for the motion before J.H. Jenkins J. $6,000.00
Attendance before J.H. Jenkins on March 26, 2003 $1,500.00
Motion for leave to appeal including attendance before Salmers J. $3,500.00
Costs on the abandoned appeal $ 800.00
Motion to fix costs including preparation and attendance in court on April 22, 2004 $2,000.00
Total Fees $13,800.00
- Disbursements subject to G.S.T. $2,131.94
$ 205.21
$2,337.15
- Disbursements not subject to G.S.T. $ 595.00
$ 110.00
$ 705.00
III. Result
[14] The Respondents/Plaintiffs shall forthwith pay to the Appellants/Defendants the following amounts:
Fees of $13,800.00 plus G.S.T., disbursements of $2,337.15 plus G.S.T. plus $705.00 of disbursements not subject to G.S.T. – a total of $17,971.75.
$13,800.00
$ 966.00 G.S.T.
$ 2,337.15
$ 163.60 G.S.T.
$ 705.00
$17,971.75
O’Driscoll J.
Released:
DIVISIONAL COURT FILE NO.: 181/04
DATE: 20040622
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
D.L.T.E. HOLDINGS LTD. and DIANE WILLIAMS
Respondents/Plaintiffs
- and -
HORSESHOE RESORT CORPORATION, NORMAN H. ALLEN, LORNE BORGAL, RICHARD ANDREWS, TREVOR GRAHAM, GARTH DEAN, WERNER DEFILLA, MARTIN KIMBLE and TERRY RANDALL
Appellants/Defendants
REASONS FOR JUDGMENT
O’Driscoll J.
Released: June 22, 2004