Court of Appeal for Ontario

Date: 2018-03-09 Docket: C62822

Judges: Cronk, Blair* and van Rensburg JJ.A.

Between

DBDC Spadina Ltd., and Those corporations listed on Schedule A hereto

Applicants (Appellants)

and

Norma Walton, Ronauld Walton, The Rose & Thistle Group Ltd., and Eglinton Castle Inc. and those corporations listed on Schedule C hereto

Respondents (Respondents)

and

Those corporations listed on Schedule B hereto, to be bound by the result

and

Such other respondents from time to time as are on notice of these proceedings and are necessary to effect the relief sought

And Between

Christine DeJong Medicine Professional Corporation

Applicant (Respondent)

and

Norma Walton, Ronauld Walton, and The Rose & Thistle Group Ltd., Prince Edward Properties Ltd., St. Clarens Holdings Ltd., and Emerson Developments Ltd.

Respondents (Respondents)

Counsel

Peter H. Griffin, D. Glatt and S.N. Roy, for the appellants

Rosemary A. Fisher, for the respondents

Heard: By written submissions

Reasons for Decision

[1] On January 25, 2018, this court released its decision allowing the appeal, and setting aside the judgment of the application judge. The court invited written submissions as to the costs of the application. We have received and reviewed such submissions.

[2] The appellants, who were successful on all aspects of the appeal, seek some of their costs of the application in the court below. In particular, they seek an order for the same amounts that were awarded to the respondents Christine DeJong Medicine Corporation ("DeJong") and Dennis and Peggy Condos (the "Condos") in the court below, namely $51,885.55 from DeJong and $14,017.28 from the Condos. They submit that this is a significant and fair discount of their actual costs of approximately $300,000, which recognizes that the appellants and the respondents were all victims of the Waltons' fraud. They rely on the fact that they incurred over $1 million in legal expenses in the overall litigation that uncovered and brought an end to the Waltons' fraud, without hope of recovering any of the costs that they were awarded against the Waltons.

[3] The respondents request that the parties bear their own costs of the application. They contend that, while the decision of the application judge was overturned by this court, the DeJong application and the respondents' resistance to the judgment against the Listed Schedule C Corporations were reasonable. They point to the fact that this was a contest between victims, and that the practical effect of this court's judgment is that they will recover almost nothing from the proceeds of the Schedule C Properties in which they invested.

[4] Costs are in the discretion of the court. The factors relevant to the exercise of discretion are set out in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. They include the result and relative success of each party, the complexity of the proceeding, the importance of the issues and the conduct of any party that impacted the duration of the proceeding. The court must consider the purposes of costs, which include both the indemnification of successful litigants for costs of the litigation and the facilitation of access to justice: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), at paras. 35-37.

[5] There is no question that the appellants were the successful parties, and that they would reasonably expect to be awarded their partial indemnity costs of the application, which would exceed the costs they now claim. The only issue is the impact of the fact that all of the parties were victims of the Waltons' fraud. In our view, the appellants' request that they be awarded the costs that the application judge awarded against them at first instance, is a reasonable response to both factors. When considered together with the fact that no costs of the appeal were awarded to the appellants, although successful, this is a just and fair disposition.

[6] Accordingly, the appellants are entitled to their costs of the application fixed at $51,885.55 against DeJong and $14,017.23 against the Condos. Both amounts are inclusive of disbursements and applicable taxes.

"E.A. Cronk J.A."

"K. van Rensburg J.A."

Schedule "A" Companies

1. Dr. Bernstein Diet Clinics Ltd.
2. 2272551 Ontario Limited
3. DBDC Investments Atlantic Ltd.
4. DBDC Investment Pape Ltd.
5. DBDC Investments Highway 7 Ltd.
6. DBDC Investments Trent Ltd.
7. DBDC Investments St. Clair Ltd.
8. DBDC Investments Tisdale Ltd.
9. DBDC Investments Leslie Ltd.
10. DBDC Investments Lesliebrook Ltd.
11. DBDC Fraser Properties Ltd.
12. DBDC Fraser Lands Ltd.
13. DBDC Queen's Corner Inc.
14. DBDC Queen's Plate Holdings Inc.
15. DBDC Dupont Developments Ltd.
16. DBDC Red Door Developments Inc.
17. DBDC Red Door Lands Inc.
18. DBDC Global Mills Ltd.
19. DBDC Donalda Developments Ltd.
20. DBDC Salmon River Properties Ltd.
21. DBDC Cityview Industrial Ltd.
22. DBDC Weston Lands Ltd.
23. DBDC Double Rose Developments Ltd.
24. DBDC Skyway Holdings Ltd.
25. DBDC West Mall Holdings Ltd.
26. DBDC Royal Gate Holdings Ltd.
27. DBDC Dewhurst Developments Ltd.
28. DBDC Eddystone Place Ltd.
29. DBDC Richmond Row Holdings Ltd.

Schedule "B" Companies

1. Twin Dragons Corporation
2. Bannockburn Lands Inc. / Skyline – 1185 Eglinton Avenue Inc.
3. Wynford Professional Centre Ltd.
4. Liberty Village Properties Ltd.
5. Liberty Village Lands Inc.
6. Riverdale Mansion Ltd.
7. Royal Agincourt Corp.
8. Hidden Gem Developments Inc.
9. Ascalon Lands Ltd.
10. Tisdale Mews Inc.
11. Lesliebrook Holdings Ltd.
12. Lesliebrook Lands Ltd.
13. Fraser Properties Group
14. Fraser Lands Ltd.
15. Queen's Corner Corp.
16. Northern Dancer Lands Ltd.
17. Dupont Developments Ltd.
18. Red Door Developments Inc. and Red Door Lands Ltd.
19. Global Mills Inc.
20. Donalda Developments Ltd.
21. Salmon River Properties Ltd.
22. Cityview Industrial Ltd.
23. Weston Lands Ltd.
24. Double Rose Developments Ltd.
25. Skyway Holdings Ltd.
26. West Mall Holdings Ltd.
27. Royal Gate Holdings Ltd.
28. Royal Gate Nominee Inc.
29. Royal Gate (Land) Nominee Inc.
30. Dewhurst Development Ltd.
31. Eddystone Place Inc.
32. Richmond Row Holdings Ltd.
33. El-Ad (1500 Don Mills) Limited
34. 165 Bathurst Inc.

Schedule "C" Properties

1. 3270 American Drive, Mississauga, Ontario
2. 0 Luttrell Ave., Toronto, Ontario
3. 2 Kelvin Avenue, Toronto, Ontario
4. 346 Jarvis Street, Suites A, B, C, E and F, Toronto, Ontario
5. 1 William Morgan Drive, Toronto, Ontario
6. 324 Prince Edward Drive, Toronto, Ontario
7. 24 Cecil Street, Toronto, Ontario
8. 30 and 30A Hazelton Avenue, Toronto, Ontario
9. 777 St. Clarens Avenue, Toronto, Ontario
10. 252 Carlton Street and 478 Parliament Street, Toronto, Ontario
11. 66 Gerrard Street East, Toronto, Ontario
12. 2454 Bayview Avenue, Toronto, Ontario
13. 319-321 Carlaw, Toronto, Ontario
14. 260 Emerson Ave., Toronto, Ontario
15. 44 Park Lawn Circle, Toronto, Ontario
16. 19 Tennis Crescent, Toronto, Ontario
17. 646 Broadview Avenue, Toronto, Ontario

Annexe "A" – Listed Schedule C Companies/Properties

Schedule C Company	Corresponding Schedule C Property
1. United Empire Lands Ltd.	3270 American Drive, Mississauga, Ontario
2. Bible Hill Holdings Inc.	0 Luttrell Ave., Toronto, Ontario
3. 6195 Cedar Street Ltd.	2 Kelvin Avenue, Toronto, Ontario
4. Prince Edward Properties Ltd.	324 Prince Edward Drive, Toronto, Ontario
5. Cecil Lighthouse Ltd.	24 Cecil Street, Toronto, Ontario
6. Atala Investments Ltd.	30 and 30A Hazelton Avenue, Toronto, Ontario
7. St. Clarens Holdings Ltd.	777 St. Clarens Avenue, Toronto, Ontario
8. The Old Apothecary Building Inc.	66 Gerrard Street East, Toronto, Ontario
9. 1780355 Ontario Inc.	346 Jarvis Street, Suite F, Toronto, Ontario
10. Emerson Developments Ltd.	260 Emerson Ave., Toronto, Ontario

*Blair J.A. took no part in this decision.