Court File and Parties

Citation: Dimitri’s Service Center Inc. v. Ocean Sands Developments Limited, 2010 ONCA 235

Date: 2010-03-31

Docket: C51107

Court of Appeal for Ontario

Before: Laskin, Moldaver and Armstrong JJ.A.

Between:

Dimitri’s Service Center Inc. Plaintiff (Appellant)

and

Ocean Sands Developments Limited Defendant (Respondent)

And Between:

Ocean Sands Developments Limited Plaintiff by Counterclaim

and

Dimitri’s Service Center Inc., Bishoi and Jon Dimitri Defendants by Counterclaim

Counsel: Jeffrey C. Silver, for the appellant Ritchie J. Linton, for the respondent

Heard and released orally: March 22, 2010

On appeal from the order of Justice David Price of the Superior Court of Justice, dated September 15, 2009.

Endorsement

[1] The appellant seeks to overturn several findings of fact made by the motion judge. The appellant says that these findings will be prejudicial to its claim in the ongoing litigation as they will be the subject of res judicata.

[2] Although we understand the appellant’s concerns, the appellant has no free standing right to ask us to overturn these findings. These findings were made on the motion judge’s determination of the costs of the various motions before him, which by then had been resolved by a consent order for vacant possession. Thus, the only issue before us is the motion judge’s costs award. The respondent is entitled to its costs and para. 66 of the motion judge’s reasons supports an award of substantial indemnity costs.

[3] Therefore, although leave to appeal costs is granted, the costs appeal is dismissed.

[4] We add to these reasons two points. First, the motion judge cannot be criticized for making the findings that the appellant seeks to challenge, as he was asked by the parties to do so. At paras. 33-54 of his reasons, in the context of his decision on costs, the motion judge carefully set out the competing positions of the appellant and the respondent, which were argued before him. The motion judge then addressed these arguments in making his costs award. The appellant cannot now complain that he should not have done so.

[5] Second, the application of res judicata and issue estoppel are discretionary. Should the ongoing litigation go to trial, the appellant is not foreclosed from arguing before the trial judge that because the motion judge’s findings were made in the context of a costs order, and on an evidentiary record that was not challenged by cross-examination, res judicata and issue estoppels should not be applied.

[6] The respondent is entitled to its costs of the appeal, fixed at $5,000, all inclusive.

“John Laskin J.A.”

“M.J. Moldaver J.A.”

“Robert P. Armstrong J.A.”