Court of Appeal for Ontario

Citation: Smith Estate v. National Money Mart Company, 2009 ONCA 455

Date: 2009-06-02

Docket: C49114 & C49116

Before: Winkler C.J.O., Sharpe, Gillese, Blair and MacFarland JJ.A.

Between:

Kenneth Smith, Estate Trustee of the Last Will and Testament of Margaret Smith, deceased, and Ronald Adrien Oriet Plaintiffs (Respondents)

and

National Money Mart Company and Dollar Financial Group, Inc. Defendants (Appellants)

Counsel:

F. Paul Morrison, Mahmud Jamal and Christopher M. Hubbard, for the appellants

Harvey T. Strosberg, Q.C., David Stratas and Trevor Guy, for the respondents

Heard: October 17, 2008

On appeal from the order of Justice Paul Perell of the Superior Court of Justice dated June 6, 2008 and reported at 2008 ONSC 27479.

ENDORSEMENT RE COSTS

[1] We do not agree with the appellants’ submission that they should be awarded costs of their unsuccessful appeal against the dismissal of the summary judgment motion. We dismissed that appeal for want of jurisdiction. In our reasons for judgment, we stated that the motion court judge’s observations as to the merits of the various defences raised by the appellants were obiter and therefore not binding upon the parties. We do not agree that the appellant had to launch an appeal to make that point. It was already well-established by V.K. Mason Construction Ltd. v. Canadian General Insurance Group Ltd. (1998), 1998 ONCA 14615, 42 O.R. (3d) 618 (C.A.), the case we cited in our reasons dismissing the appeal. Simply put, the appeal against the summary judgment motion was both unsuccessful and unnecessary and the respondents are entitled to their costs of that appeal.

[2] While these appeals raised difficult issues of law and involve a substantial claim, the $120,000 claimed by the respondents is well beyond the range awarded for a one day appeal to this court. In view of the appellants’ submission that the costs should be fixed at $50,000 for the stay appeal and $25,000 for the summary judgment appeal, we fix the respondents’ costs at $75,000, inclusive of disbursements and GST.

“W. Winkler C.J.O.”

“Robert J. Sharpe J.A.”

“E.E. Gillese J.A.”

“R.A. Blair J.A.”

“J. MacFarland J.A.”