DATE: 20010613
DOCKET: C34339 and C34340

COURT OF APPEAL FOR ONTARIO

RE:

SCINTILORE EXPLORATIONS LIMITED (Plaintiff/Appellant) and JOHN LARCHE, DONALD McKINNON, TECK CORPORATION, HOMESTAKE CANADA INC. and BATTLE MOUNTAIN CANADA LTD. (Defendants)

AND RE:

DONALD McKINNON (Plaintiff by Counterclaim/Respondent) and WALTER HRYNIW, THEODORE H. POLISUK, CLIFFORD MARSHALL HAMES, JOHN D. DEPATIE, MAXIM RESEARCH CONSULTING LTD;, BRUCE DUNNE and SCINTILORE EXPLORATIONS LIMITED (Defendants by Counterclaim/Appellants)

AND RE:

JOHN LARCHE (Plaintiff by Counterclaim/Respondent) and THEODORE H. POLISUK, ROBERT EDWARD SCHAAF, THE ESTATE OF CLIFFORD MARSHALL HAMES, DECEASED, SCINTILORE EXPLORATIONS LIMITED, WALTER HRYNIW and MICHAEL WAYNE PICKENS (Defendants by Counterclaim/Appellants)

BEFORE:

MORDEN, ABELLA and MOLDAVER JJ.A.

COUNSEL:

John A. Campion and Heather C. Devine for Scintilore Explorations Ltd and Mr. Theodore Polisuk

Burton Tait, Q.C. for John Larche

Thomas J. Dunne, Q.C. and Duncan C. Boswell for Donald McKinnon

HEARD:

May 29, 2001

On appeal from the judgment of Mr. Justice Robert J. Sharpe, dated May 9, 2000.

E N D O R S E M E N T

Released Orally: May 29, 2001

[1] With respect to the liability of Mr. Polisuk for costs, the applicable law is that stated in Television Real Estate Ltd. v. Rogers Cable T.V. Ltd. (1997), 1997 CanLII 999 (ON CA), 34 O.R. (3rd) 291 (C.A.) at 296-7. We are satisfied that the trial judge correctly applied the legal conditions in this case to the facts found by him and that these facts are reasonably supported by the evidence.

[2] On the basis that the trial judge found that, at the very least, Polisuk was a joint owner of the claim, Polisuk challenges the conclusion that he had status to bring the action against the defendants. He submits that he could not have brought the claim alone against the defendants. In view of the trial judge’s finding that Polisuk exercised de facto control over the claim and given his influence over Schaff and Hryniw, it is reasonable to conclude that he could have had the action brought by all three.

[3] The appellant accepts that if all three, that is, Polisuk, Schaaf and Hryniw, had been the plaintiffs and costs had been awarded against them, each of them would have been fully liable for the costs.

[4] The respondents did not seek costs from Hryniw and Schaaf because they were impecunious. To repeat, Polisuk would have been fully liable for the costs. Accordingly, the trial judge, for the purpose of the conditions in Television Real Estate, was entitled to conclude that Polisuk had status to bring the action against the defendants.

[5] There is no merit in the separate submission based on res judicata.

[6] With the respect of the decision that the costs be fixed, assuming that it is appealable, we are satisfied that the trial judge correctly exercised his discretion under Murano v. Bank of Montreal (1998), 1998 CanLII 5633 (ON CA), 41 O.R. (3d) 222 (C.A.). As events have transpired, the great bulk of the costs to be determined are those relating to the forty-five day trial. (Although there were numerous pre-trial motions, the costs of only four of them remain to be determined.) Further, the trial judge was right to take into account that “given the nature and protracted history of this proceeding and the age of the parties, it is imperative that the matter of costs be brought to an early resolution.”

[7] Leave to appeal is granted, but the appeal is dismissed with costs.

“J. W. Morden J.A.”

“R. S. Abella J.A.”

“M. J. Moldaver J.A.”