DATE: 20021230

DOCKET: C37478

M28905

COURT OF APPEAL FOR ONTARIO

RE: RAMPERSAUD KOMAL (Plaintiff/Appellant) –and– IRVING ISRAEL MOSES BRONFMAN (Defendant/Respondent)

BEFORE: CARTHY, LASKIN and CRONK JJ.A.

COUNSEL: Moses Muyal, for the plaintiff/appellant

Jeffrey W. Kramer and Gregory Sidlofsky,

for the defendant/respondent Bronfman

Edwin G. Upenieks, for the respondent James Jagtoo

HEARD: December 13, 2002

RELEASED ORALLY: December 13, 2002

On appeal from the order of Justice Ellen M. Macdonald of the Superior Court of Justice dated November 30, 2001.

E N D O R S E M E N T

[1] The main issue on this appeal is whether the motions judge erred in holding that there was a concluded settlement between the parties. In our view, she did not err.

[2] Assuming that the correspondence between Mr. Manes and Mr. Morton in December 1998 reflects some ambiguity about whether Mr. Morton agreed to compromise his client’s claim for only $12,000, that ambiguity was removed by the two letters from Mr. Simpson to Mr. Morton on March 23, 2000. In those letters Mr. Simpson confirms that the appellant’s claim was settled for the amount of $12,000 in exchange for terminating the notices of garnishment. Mr. Morton has never denied the accuracy of Mr. Simpson’s letters or the discussion between them that preceded the second letter. Instead, Mr. Morton did not respond to Mr. Simpson’s correspondence and, on his evidence on the motion, conceded that this correspondence provided for a payment of only $12,000. Therefore, the appellant’s claim that he is entitled to more than that amount must fail.

[3] However, even the respondent acknowledges that the appellant is entitled to $12,000. The respondent has not yet paid this amount to the appellant. Although the appellant did not ask the motions judge to order that this amount be paid out of the money in court, we think it fair to make this order on appeal to give effect to the settlement.

[4] Accordingly, the order of Macdonald J. dated November 30, 2001 is varied by providing that of the money in court to the credit of this action, $12,000 plus accrued interest from March 31, 2000, be paid to the appellant and that the remaining money in court be paid to the respondent. To this extent, the appeal is allowed. Otherwise, the appeal is dismissed.

[5] The respondent, Bronfman, seeks leave to appeal the motions judge’s refusal to award him the costs of the motion. He seeks costs against either the appellant or against the appellant and Mr. Jagtoo. Absent special circumstances, a successful party is entitled to costs. See Bell Canada v. Olympia & York Developments Ltd. (1994), 17 O.R. (3d) 135.

[6] The motions judge denied costs because of two factors or special circumstances. First, Mr. Sozonchuk did not collect his loan from Mr. Bronfman and, second Mr. Bronfman has not paid the $12,000 he acknowledges owing to the appellant. Mr. Bronfman contends that in relying on those two factors to deny costs, the motions judge erred in principle. We do not agree with that contention. Although admittedly Mr. Sozonchuk compromised his claim, Mr. Bronfman never denied the loan to him and said he would pay it when he had the money. He now has the money because of the motions judge’s order, upheld by this court, but he has never offered to repay Mr. Sozonchuk. Moreover, until the argument of this appeal, Mr. Bronfman even denied being obligated to pay $12,000 to Mr. Komal out of the money in court.

[7] We agree with the motions judge that Mr. Bronfman has received a windfall and, like her, we think it is in the interests of justice to deny Mr. Bronfman costs against the appellant.

[8] On the evidentiary record before us, we are not persuaded that it is appropriate to order costs against Mr. Jagtoo. We are not satisfied that the evidence shows that Mr. Jagtoo had an interest in the money in court apart from his claim for legal fees.

[9] Accordingly, we conclude that the motions judge did not err in the exercise of her discretion in refusing to order costs against the appellant or against Mr. Jagtoo. Leave to appeal costs is therefore refused.

[10] We have considered the costs of the appeal in combination with the motion and the results of each, including the offer to settle.

[11] Having regard to the background facts and history of these proceedings and the conduct of the various parties, we think this is an appropriate situation for each party to bear his own costs.

Signed: “J.J. Carthy J.A.”

“John Laskin J.A.”

“E.A.Cronk J.A.”