Court of Appeal for Ontario

Date: 2018-03-14

Docket: C64299 & C64300

Judges: Doherty, Paciocco and Nordheimer JJ.A.

Between

Lydia Luckevich and Pemberley Investments Ltd. Plaintiffs (Respondents)

and

Howard Paul Ivany and Terrence S. Reiber Defendants (Appellant)

And Between

Janet Louise Hilson and 1771085 Ontario Limited Plaintiffs (Respondents)

and

Howard Paul Ivany and Terrence S. Reiber Defendants (Appellant)

Counsel

Michael Katzman, for the appellant

Howard W. Reininger, for the respondents

Tim Duncan, for the Trustee in Bankruptcy

Hearing

Heard: February 5, 2018

On appeal from: the orders of Justice Meredith Donohue of the Superior Court of Justice, dated August 8, 2017, sitting without a jury.

Costs Endorsement

[1] On February 14, 2018, we released our decision in which we allowed the appeals and set aside the orders below. We invited the parties to make written submissions on the costs of the appeals. We have now received and reviewed those submissions.

[2] The appellant seeks his costs of the appeals in the amount of $9,785.34 on the basis that he was successful on his appeals. The respondents, Luckevich and Hilson, seek their costs of the appeals in the amount of $8,663.25 on the basis that they were successful on the main point, that is, that the possible third party claim was a chose in action and vested in the Trustee in Bankruptcy. The Trustee in Bankruptcy also seeks its costs of the appeals in the amount of $10,000.00 although the Trustee alternatively submits that there should be no order as to costs.

[3] In our view, there should be no costs of the appeal or of the motions below. There was divided success on the appeal. While admittedly the respondents were successful on the chose in action issue, the appellant was successful on gaining the right to have the issue, about whether he should be allowed to advance third party claims, heard and determined within the s. 37 application. As we said in our reasons, that right ought to have been accorded to the appellant when the matter was before the motion judge. The respondents resisted that right then and on this appeal.

[4] In the end result, we order that there be no costs of the appeal and no costs of the hearing before the motion judge.

Doherty J.A.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.