TCR Holding Corporation v. Ontario, 2010 ONCA 888

CITATION: TCR Holding Corporation v. Ontario, 2010 ONCA 888

DATE: 20101221

DOCKET: C51033

COURT OF APPEAL FOR ONTARIO

Goudge, MacPherson and MacFarland JJ.A.

IN THE MATTER OF THE BUSINESS CORPORATIONS ACT, R.S.O. 1990, c. B.16, AS AMENDED AND IN THE MATTER OF TCR HOLDING CORPORATION

BETWEEN

TCR Holding Corporation

Applicant (Respondent)

and

Her Majesty the Queen in right of Ontario

Respondent

and

Henry Heidt and Angela Young

Interveners (Appellants)

Counsel:

S.R. Cameron and F. Stephen Finch, Q.C., for the appellants

J. Alan Aucoin and Katherine McEachern, for the respondent TCR Holding Corporation

No one appearing, for the respondent Her Majesty the Queen in right of Ontario

Heard: March 8, 2010

On appeal from the judgment of Justice Frank J.C. Newbould of the Superior Court of Justice dated August 19, 2009, with reasons reported at (2009), 64 B.L.R. (4th) 139.

ENDORSEMENT

[1] We have reviewed the submissions of the appellants dated 3 December 2010 and of the respondents dated 10 December 2010.

[2] We do not agree with the appellants submission that the costs orders of this court and of the Superior Court of Justice against the appellants should be set aside because there was an agreement by the Lawyers’ Professional Indemnity Corporation (“LawPro”) to pay the fees of the respondent’s lawyers, Blake Cassels and Graydon (“BCG”). There is no basis for concluding that this in any way removed the liability of the respondent to pay its lawyers.

[3] The reality is that it was the appellants’ position in both courts that generated costs for the respondent. That is why both courts ordered costs against the appellants. The fact that LawPro was prepared to, in effect, backstop BCG’s fees is of no moment; both courts were entitled to exercise their discretion and order costs against the real losing parties, the appellants.

[4] Accordingly, we decline to set aside the costs orders of this court and the Superior Court of Justice in this matter.

[5] The respondents are entitled to their additional costs of this further aspect of the appeal fixed at $2000 inclusive of disbursements and applicable taxes.

“S. T. Goudge J.A.”

“J. C. MacPherson J.A.”

“J. MacFarland J.A.”