Court of Appeal for Ontario

CITATION: United States of America v. Yemec, 2010 ONCA 845

DATE: 2010-12-09

DOCKET: C51083

BEFORE: Moldaver, MacPherson, and Watt JJ.A.

BETWEEN

The United States of America and United States Federal Trade Commission

Plaintiffs (Moving Parties/Appellants)

and

George Michael Yemec, Anita Fern Rapp, Steven Lawrence Rapp, Paul Churchill Teskey, Jean-Paul C. Teskey, Julia F. Bungaro, William Dean Temple, Jr., Yvonne Buckingham, Florence Mary Teskey, World Media Brokers Inc., 1165107 Ontario Inc., Faby Games Inc., 624654 Ontario Limited, 637736 Ontario Limited, 537721 Ontario Inc., Express Marketing Services Ltd., 364058 B.C. Ltd., 331216 B.C. Ltd., Intermarketing Services Inc., Cash & Prizes, Inc., Cash & Prizes Inc., Taras Voloshchuk (A.K.A. Terry Woloschuk), Canadian Subscription Services, 1306051 Ontario Inc., 377414 Ontario Inc., O/A World Media Brokers, Dial-A-Million Inc., Telegroup Inc., O/A Market Monitor, 747321 Ontario Inc., Grand Print Inc., Jackpots & Prizes, Nelson Bunting, 599026 Ontario Inc. and Express Purchase Services Ltd.

Defendants (Respondents)

COUNSEL:

Earl A. Cherniak, Q.C., for the appellants

David E. Wires, for the respondents

On a motion with respect to costs in the appeal of the order of Justice Edward P. Belobaba of the Superior Court of Justice, dated August 26, 2009, with reasons reported at (2009), 2009 CanLII 44418 (ON SC), 97 O.R. (3d) 409.

COSTS ENDORSEMENT

[1] The appellants bring a motion to amend the court’s order dated 8 June 2010 to address the issue of the costs granted by the motion judge in his order dated 26 August 2009. The motion judge ordered costs in favour of the respondents fixed at $293,101 plus GST of $14,655.05.

[2] In an endorsement dated 28 September 2008, we declined to hear the motion on the merits on the basis that the appellants did not properly advance this issue in their appeal documentation and submissions.

[3] After receiving further correspondence, the court determined that it was mistaken in its belief that the appellants had not raised the issue of the motion judge’s costs order. Accordingly, by letter from the court’s Senior Legal Officer dated 10 November 2010, we invited the parties to make submissions on this issue. The appellants made written submissions on 18 November 2010, the respondents made a written response on 29 November 2010, and the appellants filed a written reply on 2 December 2010.

[4] Having reviewed these submissions, we are of the view that the motion judge’s costs order in favour of the respondents should be reduced. The reality is that the appellants were successful on one major issue on the appeal and failed on the second major issue.

[5] Having reviewed the motion judge’s costs reasons and this court’s reasons on the appeal, we would reduce the costs in favour of the respondents at the motion hearing to $100,000 inclusive of disbursements, plus all applicable taxes.

“M. Moldaver J.A.”

“J. C. MacPherson J.A.”

“David Watt J.A.”