Ontario Realty Corporation v. P. Gabriele & Sons Limited, 2010 ONCA 782

CITATION: Ontario Realty Corporation v. P. Gabriele & Sons Limited, 2010 ONCA 782

DATE: 20101117

DOCKETS: C50050 & C50052

COURT OF APPEAL FOR ONTARIO

Doherty, Feldman and Rouleau JJ.A.

BETWEEN:

Ontario Realty Corporation and Her Majesty The Queen in right of the Province of Ontario as represented by the Attorney General

Plaintiffs (Respondents)

and

P. Gabriele & Sons Limited, Gabbro Construction Ltd., Gabriel Environmental Services Inc., 1331679 Ontario Limited, Pierino Gabriele, Frank Angelo Gabriele, Antonio Gabriele, Sirman Associates Limited, Ivan A. Sirman, Progressive Environmental Inc., Cynthia D.I. Stiles, 1287512 Ontario Limited, Integrated Property Solutions Inc., Robert W. Allan, Environmental and Development Solutions Ltd., Richard C. Benson, 780551 Ontario Limited c.o.b. Master Environmental Services, 1331989 Ontario Limited, 981602 Ontario Inc. c.o.b. Tri-Spade, Vincent Catalfo, Ross Farewell, Kent Banting, Tate Street Capital Inc., Poplar Oaks Land Development Corporation, Valley Ford Homes Inc., Mateus Village Inc., Valleyford Development Corporation, St. Stephen’s Estates Inc., McLevin Properties Ltd., Lawson Meadowvale Developments Inc., Rosebury Holdings Inc., Mayfair Electric Limited, Zenat Holdings Ltd., Nima Investments Inc., 1331237 Ontario Limited c.o.b. Southeastern Environmental Services, Damian Spadafora, Mary Spadafora, Michael Zentil, Mauro Tonietto, Sandra Tonletto, John Perdue, John Perdue c.o.b. Legends Consulting, John F Alcioni, New Belfrie Holdings Inc., Rosemary Dicarlo, Kleinfeldt Consultants Limited, 1022635 Ontario Inc. Stephen J. Blaney, H. Sutcliffe Limited, H. James Hawken, L&B Contracting, Larry D. Bellmore, Martindale Planning Services and Robert Martindale

Defendants (Appellants)

Counsel:

Enzo Di Iorio, for the appellants in C50050, P. Gabriele & Sons Ltd., Gabriel Environmental Services Inc. and Frank Angelo Gabriele

Ronald B. Moldaver, for the appellants in C50052, Frank Angelo Gabriele, Rosebury Holdings Inc., Michael Zentil and Mauro Tonietto

James Morton, for the respondents on the cross-appeal, John Falcioni, John Perdue and John Perdue c.o.b. Legends Consulting

Ronald Carr, for the respondents

Heard: September 28-29, 2010

On appeal from the judgment of Justice Frank Newbould of the Superior Court of Justice dated January 23, 2009.

COSTS ENDORSEMENT

[1] In our reasons issued on October 5, 2010, we invited any party seeking costs of the appeals or cross-appeal to provide written submissions. The only parties seeking costs are the respondents Ontario Realty Corporation and her Majesty the Queen in Right of the Province Ontario as represented by the Attorney General. They seek costs of the two appeals in proportion to their success with respect to the transactions that were the subject of the appeals. The total amount sought is $48,919.00 less $6,259.47 to reflect the partial success of the appellants in appeal C50052.

[2] The respondents argue that in dollar terms the overall level of success of the appellants was limited and, as a result, the appellants are only entitled to a moderate reduction in the amount of costs.

[3] The appellants in C50052 submit that, although the level of success was moderate, this court should take into account the fact that no adjustment to the cost award below was made to reflect this partial success. Because the costs below were very significant, even a modest adjustment in those costs to account for their success on appeal would likely exceed the amount of costs being sought by the respondents on appeal. As a result, they argue that there should be no award of costs for the appeal. They further submit that, if costs are ordered, the amount of the award should be reduced substantially to reflect the reasonable expectations of the parties. We agree with the appellants that there should be no award as to costs in appeal C50052.

[4] With respect to appeal C50050, the appellants made no submissions in response to the respondents’ submissions. They simply rely on the submissions of the appellants in C50052.

[5] The respondents were totally successful in appeal C50050 and we see no reason to deny them costs. The respondents’ costs outline for C50050 is $18,298.00. Appeal C50050 took up little time at the hearing and, as compared to appeal C50052, was straightforward and of limited complexity. In our view, therefore, the appropriate award of costs is $7,500 inclusive of disbursements and applicable taxes.

[6] In conclusion, there will be no award as to costs in C50052 and the respondents are entitled to their costs in appeal C50050 fixed at $7,500 inclusive of disbursements and applicable taxes.

“D. Doherty J.A.”

“K. Feldman J.A.”

“Paul Rouleau J.A.”