CITATION: 1117387 Ontario Inc. v. National Trust Company, 2010 ONCA 492
DATE: 20100709
DOCKET: C49609 and C50315
COURT OF APPEAL FOR ONTARIO
Moldaver, Juriansz and Epstein JJ.A.
BETWEEN
DOCKET: C49609
1117387 Ontario Inc. and Antonios (“Tony”) Ishac
Applicants (Appellants/ Respondents by way of cross-appeal )
and
National Trust Company
Respondent (Respondent/ Appellant by way of cross-appeal)
AND BETWEEN
DOCKET: C50315
National Trust Company
Applicant (Respondent/ Appellant by way of cross-appeal)
and
1117387 Ontario Inc. and Antonios (“Tony”) Ishac
Respondents (Appellants/ Respondents by way of cross-appeal)
Earl A. Cherniak, Q.C. and Brian Radnoff, for the appellants, 1117387 Ontario Inc. and Antonios Ishac
John P. O’Toole, for the respondent, National Trust Company
R. Aaron Rubinoff and Joël M. Dubois, for the respondent Deloitte & Touche Inc.
Heard: November 30, 2009
On appeal from the order of Justice W.J.L. Brennan of the Superior Court of Justice dated October 10, 2008.
COSTS ENDORSEMENT
EPSTEIN J.A.:
[1] The parties have delivered submissions as to the costs of the appeal, the cross-appeal and the fresh evidence motion.
[2] Deloitte & Touche Inc., Receiver and Manager, and National Trust Company made a joint submission as to costs. Relying on the principles set out in Boucher v. Public Accounts Council (Ontario), 2004 14579 (ON CA), 2004, 71 O.R. (3d) 291 (C.A.), and the fact that they were successful on the appeal, the cross-appeal and the fresh evidence motion, the Receiver claims costs of $83,350.50 and National Trust, costs of $15,253.84. These amounts are for the appeal, cross-appeal and fresh evidence motion, are on a partial indemnity scale and include G.S.T. and disbursements.
[3] The Receiver and National Trust submit that the issues on appeal, namely, damages of over one million dollars plus the right of 1117387 Ontario Inc. and Antonios Ishac to commence an action in which the amount in issue would be sizable, were of considerable importance. Furthermore, they argue that the matter was factually and legally complex. The Receiver and National Trust also contend that 1117387 Ontario Inc. and Mr. Ishac took untenable positions that unnecessarily lengthened the appeal, the most significant being the motion to introduce fresh evidence.
[4] 1117387 Ontario Inc. and Mr. Ishac’s primary position is that given the inherent contradiction in the application judge’s decision, all parties had an interest in correcting the order. Accordingly, there should be no costs of the appeal.
[5] Alternatively, they submit that the amounts claimed are neither fair nor reasonable. They say that, as appellants, they did the majority of the ground work in preparing for the appeal – work such as preparing the joint appeal book and joint compendium. They also argue that while the matter was factually complex, the legal principles were well-established.
[6] 1117387 Ontario Inc. and Mr. Ishac point out that National Trust filed no factum on the appeal; rather it essentially relied on the submissions of counsel for the Receiver. Further, they submit that National Trust should not be awarded any costs of the cross-appeal, as it had no interest in the cross-appeal.
[7] 1117387 Ontario Inc. and Mr. Ishac submit that if any costs are awarded, the fair and reasonable amounts would be $20,000 to the Receiver and $1,400 for National Trust.
[8] In my view, the Receiver and National Trust are entitled to their reasonable and fair costs. I do not accept the submission of 1117387 Ontario Inc. and Mr. Ishac that they had no choice but to appeal due to the problem created by the application judge in approving the Receiver’s report and giving them the right to sue the Receiver. They had the alternative of simply not suing.
[9] With respect to the quantum of the costs, I agree with the Receiver and National Trust that the issues on appeal were important to the parties and the factual background was complex. However, I also agree with 1117387 Ontario Inc. and Mr. Ishac that the legal principles were well known and the appeal was, to a certain extent, a re-argument of the application.
[10] Furthermore, 1117387 Ontario Inc. and Mr. Ishac are correct that National Trust played a relatively minor role in the appeal and no active role in the cross-appeal.
[11] Relying on the principles set out in Boucher v. Public Accounts Council (Ontario), 2004 14579 (ON CA), 2004, 71 O.R. (3d) 291 (C.A.), I would order 1117387 Ontario Inc. and Mr. Ishac to pay $30,000 to the Receiver and $7,500 to National Trust. These amounts are inclusive of disbursements and G.S.T.
“Gloria Epstein J.A.”
“I agree M.J. Moldaver J.A.”
“I agree Russell Juriansz J.A.”