Metropolitan Toronto Condominium Corporation No. 1250 v. The Mastercraft Group Inc., 2009 ONCA 745

CITATION: Metropolitan Toronto Condominium Corporation No. 1250 v. The Mastercraft Group Inc., 2009 ONCA 745

DATE: 20091027

DOCKET: C46857

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Goudge and Epstein JJ.A.

BETWEEN

Metropolitan Toronto Condominium Corporation No. 1250

Plaintiff/Respondent (Appellant/Respondent by way of cross-appeal)

and

The Mastercraft Group Inc., 188 Eglinton Inc., 188 Lofts Inc., Lomico 188 Inc., Bruce C. Greenberg and S-99 Limited

Defendants/Applicant (Respondents/Appellants by way of cross-appeal)

Andrew Robinson and Patricia Conway, for the appellant

Bruce O’Toole and Amanda Heydon, for the respondents Lomico 188 Inc. and S-99 Limited

Allan Sternberg, for the respondents The Mastercraft Group Inc., 188 Eglinton Inc., 188 Lofts Inc. and Bruce C. Greenberg

Heard: February 10 and 11, 2009

On appeal from the order of Justice Romain W. M. Pitt of the Superior Court of Justice dated February 20, 2007, with reasons reported at (2007), 54 R.P.R. (4th) 260.

COSTS ENDORSEMENT

Epstein J.A.:

[1] I have received submissions as to the costs of the trial and the application that resulted in the order of the trial of the issues between the parties.

[2] The appellant submits that it is entitled to its costs of the trial in the amount of $247,251.60 and of the application in the amount of $26,391.60. Relying on the complexity of the factual and legal issues, the amount of money involved, and the costs claimed by the respondents at the conclusion of the trial, the appellant argues that these amounts are fair and reasonable in accordance with the analysis set out in Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

[3] The respondents’ submissions focus primarily on the trial judge’s costs award. He awarded costs to the respondent, S-99 Limited and the respondent Lomico 188 Inc. in the amount of $50,000 each. On the basis that success was divided the trial judge awarded no costs to either the appellant MTCC #1250 or 188 Eglinton Inc. The respondents therefore contend that the appellant should be awarded no more than $100,000.

[4] The result of the appeal is that the appellant was successful on all issues. The appellant submits that costs of the trial should follow the event. In other words, the appellant is entitled to its costs on a partial indemnity basis against the respondents, The Mastercraft Group inc., 188 Eglinton Inc., 188 Lofts Inc., Lomico 188 Inc., and S-99 Limited.

[5] I will first deal with the costs of the application brought by S-99 Limited for a declaration that it was entitled to possession of the HVAC equipment. Extensive written material was filed and cross-examinations took place. In the end, the application judge ordered the trial of an issue to be heard together with the other claims in which MTCC #1250 was the plaintiff. I would order S-99 to pay MTCC #1250 its costs of the application in the amount of $25,000 inclusive of disbursements and Goods and Services Tax.

[6] As far as the costs of the trial are concerned, having regard to the complexity, the amount in issue and the work expended, I consider an order that the respondents pay MTCC #1250 its costs of the trial in the amount of $150,000 inclusive of disbursements and Goods and Services Tax, to be fair and reasonable.

[7] This court’s decision contemplates further proceedings by way of reference. The costs of the reference will be in the discretion of the judge hearing the reference.

[8] So ordered.

RELEASED:

“GE” “Gloria Epstein J.A.”

“OCT 27 2009” “I agree Winkler C.J.O.”

“I agree S. Goudge J.A.”