SUPERIOR COURT OF JUSTICE – ONTARIO
RE: BRUNO GOTTARDO and DAVID GOTTARDO, Applicants (Respondents in Appeal)
AND:
LAWRENCE GOTTARDO, DENISE GOTTARDO, B. & L. GOTTARDO BROS. EXCAVATING LIMITED and 1043280 ONTARIO LIMITED, Respondents (Appellants)
AND RE: LAWRENCE GOTTARDO, DENISE GOTTARDO, GABRIELLA GOTTARDO, B. & L. GOTTARDO BROS. EXCAVATING LIMITED and 1043280 ONTARIO LIMITED, Counter-Applicants (Appellants)
AND:
BRUNO GOTTARDO, DAVID GOTTARDO, NADIA GOTTARDO, ANTONIO MARTINELLO, B. GOTTARDO CONSTRUCTION LIMITED, GANA CONTRACTING INC., GANA PROPERTIES INC., DERRY AND TOMKEN BUSINESS CENTRE INC., 811437 ONTARIO LIMITED and 615146 ONTARIO LIMITED, Counter-Respondents (Appellants)
BEFORE: Matlow, Low and Linhares de Sousa JJ.
COUNSEL: Ronald Flom, for the Appellants
Martin Greenglass, for the Respondents
HEARD: Costs submissions made in writing.
COSTS ENDORSEMENT
1There were four issues before the court on this appeal. In the result, the appellants were successful on two of the issues although a variation of the equalization award was granted only in respect of one of the issues.
2In terms of the monetary result, the payment required to be made by the appellants to the respondents was reduced by 25%. While it was not the result that would have ensued had the appellants succeeded in their tax argument, the appellants have nevertheless achieved some degree of success.
3The respondents submit that they should be awarded costs of the appeal. We are not so persuaded.
4There is no principle that costs should be awarded in arithmetic proportion to the degree to which a successful party has achieved a result as measured against his prayer for relief. As a general principle, costs are awarded on a threshold basis.
5In the appeal before this court, success was divided. Significant time and effort was expended on the tax issue upon which the appellants were unsuccessful.
6The Court has a wide discretion in the award of costs on a multi-faceted appeal. We are of the view that in these circumstances, no award of costs should be made.
Low J.
Matlow J.
Linhares de Sousa J.
Date: January 18, 2010