Court File and Parties

Court File No.: DC-05-010188-00 Date: 2006-10-31

Divisional Court - Ontario

Re: Concord Carriers Ltd., Plaintiff (Appellant) And: Alnet Holdings Ltd., Burger King Restaurants of Canada Ltd., Gaydon Contractors Ltd., Ukrainian Credit Union Ltd., Defendants (Respondents)

Before: Cunningham A.C.J., Chapnik and Thomson JJ.

Counsel: Lou Brzezinksi, for the Plaintiff (Appellant) Harvey Ash, for the Defendant (Respondent) Gaydon Michael Hackl, for the Defendant (Respondent) Burger King

Heard: June 1, 2006

Decision on Costs

[1] The plaintiff, Concord, appealed the judgment of Tulloch J. in which Gaydon was granted summary judgment and an order dismissing the action against all the defendants except Gaydon. The appeal to this court was dismissed with costs to the respondent.

[2] The respondent, Gaydon, claims costs of the appeal in the sum of $14,281.40 assessed on a substantial indemnity basis or, in the alternative, $9,899.89 on a partial indemnity basis. The respondent, Burger King, seeks $16,021.12 for costs on a substantial indemnity basis or $10,759.28 on a partial indemnity basis.

[3] Concord takes the position that there is no basis for awarding any costs to Burger King and that, in any event, the respondents’ claims for costs are excessive in the circumstances.

[4] The total amount of the plaintiff’s claim in this matter was for $38,088.66. The costs awarded by Tulloch J. in favour of both respondents totalled $17,900.34 plus interest. In our view, this is not a case where substantial indemnity costs are warranted.

[5] Though the appeal was found to be without merit, unlike the situation in Moyer et al. v. Polsin et al. (1992), 11 O.R. (3d) 216 (Div.Ct.) there was no finding and no evidence that the appeal before us was undertaken in bad faith.

[6] Taking into account the quantum of the claim, the costs previously awarded, as well as the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, including the reasonable expectation of the parties and the complexity of the issues, in our view, a fair and reasonable award of costs would be the sum of $5,000.00 inclusive of disbursements, plus GST in favour of Gaydon (who took carriage of the appeal), and $3500.00 all inclusive to Burger King.

[7] Order accordingly.

Cunningham A.C.J.

Chapnik J.

Thomson J.