Court of Appeal for Ontario

Date: 2017-01-19 Docket: C61569

Judges: Hoy A.C.J.O., Benotto and Huscroft JJ.A.

Between

Canadian Imperial Bank of Commerce, High River Limited Partnership and Philip Services Corp. by its Receiver and Manager, Robert Cumming

Plaintiffs (Appellants)

and

Deloitte & Touche, Deloitte & Touche LLP, Deloitte Touche Tohmatsu, Deloitte Touche Tohmatsu LLP and Deloitte Touche Tohmatsu f/k/a Deloitte Touche Tohmatsu International

Defendants (Respondents)

Counsel

For the appellants, High River Limited Partnership and Canadian Imperial Bank of Commerce: Thomas J. Dunne, Q.C., John E. Callaghan and Benjamin Na

For the respondents, Deloitte & Touche LLP, Deloitte Touche Tohmatsu LLP and Deloitte Touche Tohmatsu f/k/a Deloitte Touche Tohmatsu International: Robb C. Heintzman, Michael D. Schafler and Mark G. Evans

Heard: October 5, 2016

On appeal from: The order of Justice Paul M. Perell of the Superior Court of Justice, dated December 10, 2015, with reasons reported at 2015 ONSC 7695, 25 C.C.L.T. (4th) 194.

Costs Endorsement

[1] We directed that if the parties were unable to agree on the costs of the partial summary judgment motion below and the appeal, they could provide brief written submissions within 21 days.

[2] We have received and reviewed written submissions from the parties. They agree on the quantum of the costs of the motion below and the appeal, but do not agree on when those costs should be paid.

[3] The respondents ("Deloitte") submit that the motion judge ordered that costs of the motion should be in the cause and there is no reason to disrupt that aspect of his disposition. It says that there is an agreement between the parties that has governed this action since its inception: no money is to change hands on interlocutory motions until the final resolution of the proceeding.

[4] In the alternative, Deloitte submits that the issue of costs on the underlying motion should be remitted to the motion judge for consideration.

[5] We agree with the appellants (the "Lenders") that costs for both the motion below and the appeal should be fixed in the amounts agreed and made payable by Deloitte within 30 days.

[6] Deloitte's submission that the parties agreed that no money is to change hands on interlocutory motions until the final resolution of this proceeding is inconsistent with its position before the motion judge that the Lenders should pay costs of the motion to Deloitte within 30 days and with costs orders made in the earlier stages of this litigation.

[7] And in our view, this is not an appropriate circumstance in which to order costs in the cause. We concluded that the motion judge erred in determining that there was no risk of duplicative or inconsistent findings at trial and that granting partial summary judgment was advisable in the context of the litigation as a whole. Whether or not the Lenders prevail at trial, the costly partial summary judgment motion brought by Deloitte was flawed.

[8] We are not persuaded that it is appropriate to remit this issue to the motion judge for determination.

[9] Accordingly, costs for both the motion below and the appeal shall be fixed in the amounts agreed and made payable by Deloitte within 30 days.

"Alexandra Hoy A.C.J.O."

"M.L. Benotto J.A."

"Grant Huscroft J.A."