CITATION: MacKinnon v. Ontario Municipal Employees Retirement Board, 2008 ONCA 120
DATE: 20080221
DOCKET: C46215 and C47044
COURT OF APPEAL FOR ONTARIO
LASKIN, GILLESE and BLAIR JJ.A.
BETWEEN:
WYMAN MACKINNON
Plaintiff (Appellant/Respondent)
And
ONTARIO MUNICIPAL EMPLOYEES RETIREMENT BOARD, BOREALIS CAPITAL CORPORATION, BOREALIS REAL ESTATE MANAGEMENT INC., IAN COLLIER, R. MICHAEL LATIMER and MICHAEL NOBREGA
Defendants (Respondents/Appellant)
Mark Zigler, Jonathan Ptak and Anthony Guindon for Wyman MacKinnon, the appellant/ respondent to the Borealis Capital Corporation appeal.
Peter H. Griffin and Eli S. Lederman for the respondents, Ontario Municipal Employees Retirement Board, Borealis Capital Corporation and Borealis Real Estate Management Inc. and for the appellant, Borealis Capital Corporation.
R. Bruce Smith and Evan Atwood for Ian Collier, R. Michael Latimer and Michael Nobrega, respondents in the MacKinnon appeal.
Heard: June 28, 2007
On appeal from the orders of Justice John D. Ground of the Superior Court of Justice, dated August 16, 2006, with reasons reported at (2006), 2006 CanLII 27996 (ON SC), 52 C.C.E.L. (3d) 138, and January 19, 2007.
COSTS ENDORSEMENT
[1] We have reviewed the parties’ submissions and are satisfied that, in the circumstances, this court should fix not only the costs of the appeal but also those of the underlying proceedings.
[2] We fix the costs of the appeal at $75,000, inclusive of the costs of the motion for leave to appeal, disbursements and GST. In fixing costs below that which was sought (approximately $100,000), we acknowledge that the appellant is entitled to his costs on a full indemnity basis and that a total of four appeals were disposed of. We are mindful also that the issues were novel, complex and of extreme importance to the action. It remains, however, that the costs must be reasonably incurred. In that regard, we note that the appeals were heard on a single day and that they arose from a Rule 21 motion.
[3] The respondents acknowledge that they are to pay costs of the appeal on a partial indemnity basis. We set the partial indemnity costs payable by the respondents at $50,000. The remainder of the costs of the appeal (i.e. $25,000) shall be paid from the Fund.
[4] The appellant is entitled to his costs, on a full indemnity basis, of the Rule 10 motion and the first Rule 21 motion. Those costs are fixed at $75,000 and $25,000, respectively. The respondents shall pay the costs of the second Rule 21 motion on a partial indemnity basis, which costs are fixed at $20,000. The appellant is entitled to the remainder of his costs of that motion, on a full indemnity basis, fixed at $15,000, inclusive of disbursements and GST.
[5] Order to go accordingly.
“John Laskin J.A.”
“E.E. Gillese J.A.”
“R.A. Blair J.A.”