Court of Appeal for Ontario
Citation: Royal Bank of Canada v. Société Générale (Canada), 2007 ONCA 302
Date: 20070423
Docket: C44657
Before: BORINS, ARMSTRONG and BLAIR JJ.A.
Parties
BETWEEN:
ROYAL BANK OF CANADA
Plaintiff (Appellant)
and
SOCIÉTÉ GÉNÉRALE (CANADA), BERT COISH, CITICAPITAL LIMITED, BANK OF MONTREAL, AMERICAN HOME ASSURANCE COMPANY, CHUBB INSURANCE COMPANY OF CANADA, LIBERTY MUTUAL INSURANCE COMPANY OF CANADA as represented by LIBERTY INTERNATIONAL CANADA, GULF INSURANCE COMPANY UK LTD., and LLOYD’S SYNDICATES 204 (R.A. EDWARDS), 1007 (SVB VILLERS), 435 (DP MANN) & 1212 (SVB BURNHOPE) respecting POLICY NO. MMF/1395
Defendants (Respondents)
Counsel
Robert J. Morris, for Royal Bank Canada
David C. Rosenbaum and Tajesh Adhihetty for CitiCapital Limited
R. Paul Steep, Christopher A. Wayland and Heather L. Meredith for Société Générale (Canada) and Bert Coish
Heard: October 10 and 11, 2006
On appeal from the orders of Justice John D. Ground of the Superior Court of Justice dated November 18, 2005 and April 3, 2006.
COSTS ENDORSEMENT
[1] Subsequent to the release of the court's reasons for judgment on December 21, 2006, the appellant, the Royal Bank of Canada (“RBC”), petitioned the court to address an unclarified issue in respect to the costs order of the court. In allowing RBC's appeals and dismissing the cross‑appeals of Société Générale (Canada) (“SoGen”) and CitiCapital Limited (“CitiCap”), at para. 56 the court made the following order:
For all of the above reasons, I would allow RBC’s appeal and dismiss the cross‑appeals of SoGen, CitiCap and BMO, set aside the judgment of the motion judge, substitute a judgment dismissing all of the motions for summary judgment and order that RBC’s entire action proceed to trial. I would award RBC its costs of the motions. Failing agreement by the parties on the amount of costs, I would order that they be assessed. RBC is to have its costs of the appeal on a partial indemnity basis fixed in the amount of $85,000, inclusive of disbursements and GST.
[2] The unclarified costs issue arose in relation to the motions for leave to appeal to the Divisional Court brought by SoGen and CitiCap from Ground J.'s dismissal of certain parts of their motions for summary judgment. On granting leave to appeal, Swinton J. left the costs of the motions to be determined by the panel hearing the appeal. The Divisional Court appeal was subsequently transferred to this court to be heard with RBC's appeal as cross‑appeals. The issue on which RBC has sought clarification is whether the costs award of $85,000 includes the costs of the motions for leave to appeal.
[3] At the conclusion of the argument of the appeal, one of the costs outlines that RBC filed with the court was in respect to the costs of the motions for leave to appeal. SoGen and CitiCap submit that the panel must, therefore, have taken those costs into account in fixing the costs of the appeal at $85,000. However, through inadvertence, the panel failed to do so. Therefore, it is appropriate that we deal with the costs of the leave to appeal motions at this time.
[4] RBC has asked for costs and disbursements of approximately $65,000 in respect to SoGen's motion for leave to appeal, and approximately $33,000, in respect to CitiCap's motion. As we understand their position, SoGen and CitiCap contend that if the court did not include the costs of their leave to appeal motions in its award of $85,000, the amounts claimed by RBC are excessive. They do not say that RBC was not entitled to its costs of the motions. We agree that the amounts claimed are excessive.
[5] We do not agree with RBC's contention that once it served its notice of appeal, by virtue of rule 61.07 of the Rules of Civil Procedure there was no need for SoGen and CitiCap to obtain leave to cross‑appeal and, therefore, the motions were unnecessary and should have been abandoned. In our view, the rule applies only where the appeal and the cross‑appeal are to the same court. Here RBC's appeal was to the Court of Appeal, whereas the appeals of SoGen and CitiCap were to the Divisional Court with leave. SoGen and CitiCap had no direct route of appeal to this court even with leave. It was only after leave to appeal had been granted by the Divisional Court that they could move, as they did, pursuant to s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 to combine the appeals in this court. It is for this reason that Sigesmund v. The Royal College Dental Surgeons of Ontario (2006), 2006 28089 (ON CA), 81 O.R. (3d) 659 (C.A.), relied on by RBC, has no application to the circumstances of this case.
[6] We would fix the costs of the motions for leave to appeal as follows: SoGen's motion – $22,000 inclusive of disbursements and GST; CitiCap's motion – $12,000 inclusive of disbursements and GST.
[7] After receiving the court's permission to make submissions limited to the costs of the leave to appeal motions, RBC included in its submissions to the panel a request that the court should also determine the scale applicable to the costs of the summary judgment motions before Ground J. We agree with SoGen and CitiCap that the court should not deal with this issue as RBC was not given permission by the court to present it for the court's determination. Moreover, at a case conference before Ground J. on February 14, 2007, all parties agreed that Ground J. should determine the scale of costs of the summary judgment motions and he fixed a date for doing so. In this regard, para. 7 of Ground J.'s order of February 14, 2007 states:
- Assessment of costs of summary judgment motions to be scheduled before an Assessment Officer; motion to fix scale of costs returnable March 16, 2007 [before Ground J.] – one hour.
[8] Accordingly, we would fix the costs of the motions for leave to appeal as indicated. However, we decline to consider RBC's request that the panel should determine the scale of costs of the summary judgment motions.
“S. Borins J.A.”
“Robert P. Armstrong J.A.”
“R. A. Blair J.A.”