Court of Appeal for Ontario

CITATION: Schembri v. Way, 2011 ONCA 568

DATE: 20110831

DOCKET: C53911

Doherty, Laskin and Simmons JJ.A.

BETWEEN

Gordon Schembri, Schembri Financial Limited, Leaf Construction Management Inc. and 1784652 Ontario Inc.

Plaintiffs (Appellants)

and

Al Way, Jamesway Construction Corporation, Kingsley Financial Inc., Triumph Financial Holdings Inc., 1725030 Ontario Inc., Premier Project Consultants Ltd., National Rent-All Inc., Terra-Tec Excavating, Oxford & First St. Inc., Simcoe & Eastwood Avenue Inc., and 359 King Ontario Inc.

Defendants (Respondents)

Counsel:

James M. Wortzman, for the plaintiffs (appellants)

Heath Whiteley, for the defendants (respondents)

Lorne S. Silver and Joseph Bellissimo, for the Receiver, Schwartz, Levitsky, Feldman Inc.

Heard: July 11, 2011

COSTS ENDORSEMENT

[1] We have reviewed the written submissions filed by Schembri (the appellant) and Way (the respondent). Schembri was substantially but not entirely successful on the appeal. He is entitled to his costs of the appeal.

[2] In their written submissions, each party continued to attack the conduct of the other in the various proceedings underlying this appeal. Their allegations have no bearing on the appropriate order to be made with respect to the costs of the appeal. The appeal raised a genuine issue and nothing done in the context of the appeal calls for any costs sanction against any party by this court. Schembri should have his costs on a partial indemnity basis.

[3] The issue on appeal was quite narrow and turned on whether the motion judge had erred in the exercise of her discretion by failing to take into account the conduct of the parties in the context of the court ordered sale of the properties. This was not a complicated appeal. We also note that the appeal was argued only two weeks after the motion. There was obviously no need to “re-learn” the file for the appeal.

[4] We do not see this as a case where any costs awarded should be paid by the Estate. This was, in essence, litigation between Schembri and Way. Mr. Schembri was largely successful and Mr. Way should pay his costs of the appeal.

[5] The Receiver chose not to file submissions with respect to costs, although counsel for the Receiver did appear on the appeal. We are not aware of the terms of the order appointing the Receiver insofar as they may be relevant to the Receiver’s entitlement to compensation for any work done in relation to this appeal. We will not make any order as to the Receiver’s costs of the appeal.

[6] The motion before Weiler J.A. was settled by way of consent order. That order did not address the questions of costs. We will not make any order as to costs of that motion.

[7] The parties are presently before the motion judge on the matter of the costs of the motion. The motion judge should make that determination.

[8] Having particular regard to the outcome of the appeal and the nature of the appeal, we are satisfied that Schembri should have his costs in the amount of $15,000, inclusive of disbursements and applicable taxes.

“Doherty J.A.”

“John I. Laskin J.A.”

“Janet Simmons J.A.”