COURT OF APPEAL FOR ONTARIO
DATE: 20061025
DOCKET: C44526
RE:
1379691 ONTARIO LTD. (Plaintiff (Respondent)) – and – JOHN APPUGLIESI, JASPER CONSTRUCTION CORP., JOSEPH GRECO a.k.a. GIUSEPPE GRECO, ERICON GENERAL CONTRACTING LTD. and TORONTO CATHOLIC DISTRICT SCHOOL BOARD (Defendants (Appellants))
BEFORE:
BORINS, FELDMAN and MacFARLAND JJ.A.
COUNSEL:
Marco Drudi
for the appellants
A. Edward Tonello
for the respondent
HEARD & ENDORSED:
October 23, 2006
On appeal from the judgment of Justice Edward Belobaba of the Superior Court of Justice dated November 9, 2005.
A P P E A L B O O K E N D O R S E M E N T
[1] We are satisfied that the trial judge made no error in finding that Jasper is liable to pay the respondents the amount set out in para. 1 of the formal judgment.
[2] We would grant leave to appeal costs and reduce the costs to $45,000 plus disbursements of $3,055 and GST. In our view, as Mr. Tonello acknowledged, the trial judge should not have included the hours spent by the respondent’s counsel in respect to motions that were unsuccessful.
[3] In considering the $39,000, we wish to emphasize that Jasper, Ericon and Greco are jointly and severally liable to pay the respondents the outstanding judgment, and that they should do so without delay, and as well, they should pay the costs of the trial without delay.
[4] We are informed that by a recent order of Labrosse J.A., the trust funds of at least $39,000 which were held in trust by Ericon’s lawyer pursuant to the order of Stewart J., were ordered to be paid into court. We are not in a position to determine the parties who have an entitlement to all, or part, of these funds. In our view, the proper person to make this determination is the trial judge to whom we remit this issue for determination.
[5] Accordingly, subject to the variation of the costs of the trial, we would dismiss the appeal. The respondent will have its costs fixed at $7,500, inclusive of disbursements and GST, and inclusive of the motion before Blair J.A.