COURT OF APPEAL FOR ONTARIO

DATE: 20040929

DOCKET: C38611-C38616-C38624

RE: MORRIS WAXMAN and MORRISTON INVESTMENTS LIMITED (Plaintiffs/Appellants) v. TAYLOR LEIBOW, WAYNE LINTON and I. WAXMAN & SONS LIMITED (Defendants/Respondents)

BEFORE: DOHERTY, LASKIN and GOUDGE JJ.A.

COUNSEL: R.S. Harrison for the appellants Frank E.P. Bowman and Christopher Hluchan for the respondent

E N D O R S E M E N T

[1] We have considered the written submissions filed by counsel.

[2] Both sides agree that Taylor Leibow, as the successful party on the appeal, is entitled to costs on a partial indemnity basis. Morris argues, however, that those costs should be reduced to reflect the increased costs associated with Taylor Leibow’s cross-appeal. We disagree. It was appropriate for Taylor Leibow to take all reasonable steps to defend the trial result. In these circumstances, those steps included a cross-appeal. We also do not agree that the cross-appeal greatly complicated the proceedings or materially increased the effort required by Taylor Leibow to respond to Morris’s appeal.

[3] We also reject the submission that it was unnecessary for counsel for Taylor Leibow to be present throughout the appeals. The facts in the “main” appeal were intertwined with those raised on this appeal. It was entirely appropriate and most helpful to the court that all counsel be present throughout the hearing.

[4] We agree, however, with Morris’s submission that Taylor Leibow should not be compensated for the attendance of four lawyers on the hearing of the appeal. We would eliminate the amount claimed for the two research lawyers.

[5] We also agree with Morris’s submission that counsel for Taylor Leibow are not entitled to the costs of the motion before Goudge J.A. or the appeal taken to this court on January 6, 2004.

[6] The parties agree that we should fix Taylor Leibow’s costs. With the two exceptions noted above, we accept the amounts referred to in Taylor Leibow’s bill of costs. Costs are, therefore, fixed in the amount of $250,000.00, inclusive of disbursements and GST.

“Doherty J.A.”

“J.I. Laskin J.A.”

“S.T. Goudge J.A.”