COURT OF APPEAL FOR ONTARIO

Development Inc., 2012 ONCA 110

DATE: 20120217

DOCKET: C53496 and C54375

Laskin, Rosenberg and Rouleau JJ.A.

BETWEEN

Romspen Investment Corporation

Applicant (Respondent)

and

Woods Property Development Inc. and TDCI Holdings Inc.

Respondents

Ronald Slaght, Q.C. and John J. Chapman, for the appellant Home Depot Canada Inc.

David P. Preger and Lisa Lorne, for the respondent

Harvin D. Pitch, for the respondent SF Partners Inc.

Heard: November 18, 2011

On appeal from the orders of Justice Herman J. Wilton-Siegel of the Superior Court of Justice dated March 17, 2011 and September 28, 2011, with reasons dated March 17, 2011, September 28, 2011 and October 3, 2011, with the March 17, 2011 reasons reported at 2011 ONSC 3648, 75 C.B.R. (5th) 109 and the October 3, 2011 reasons reported at 2011 ONSC 5704.

COSTS ENDORSEMENT

[1] The appellant Home Depot of Canada Inc. seeks costs of the appeal in the amount of $62,719 and costs of the stay motion in the amount of $10,329.

[2] The respondent Romspen Investment Corporation agrees that the amounts sought are reasonable. Romspen, however, argues that there are special circumstances in this case which justify a departure from the general rule that a successful party is entitled to payment of its costs forthwith.

[3] In Romspen’s view, because the matter is returning to the Superior Court for a decision on the merits, the costs should be in the cause of the outcome of the proceeding when it is reargued. That is to say, if the motion by the Receiver, SF Partners Inc. succeeds, Home Depot’s costs of the appeal and the stay motion should not be payable by Romspen and the Receiver. If, however, the Receiver’s motion fails, such costs should be payable by Romspen and the Receiver.

[4] In the alternative, Romspen submits that Home Depot’s costs should be paid forthwith out of the funds being held in Miller Thomson’s trust account. Those funds are held in purported compliance with Home Depot’s obligation to pay rent under its ground lease with Woods Property Development Inc.

[5] The Receiver takes no issue with respect to the quantum being sought but argues that it should not be required to pay costs of the appeal because it has been managing the property on which the Home Depot store is located without receipt of any payment or contribution by Home Depot for rent or operating cost.

[6] In our view, the circumstances outlined by Romspen and the Receiver do not warrant departing from the usual order that the successful party be paid its costs. As a result, we award the appellant Home Depot its costs of the appeal fixed at $62,719 and costs of the stay motion fixed in the amount of $10,329. These are inclusive of disbursements and applicable taxes and are to be payable by Romspen and the Receiver jointly and severally.

[7] On consent of the parties, the cost orders of Wilton-Siegel J. dated August 22, 2011 and September 28, 2011 are vacated and the costs arising from these motions are left to the discretion of the judge hearing the new motion.

[8] In addition, there will be an order that the accountant release the letter of credit filed to the credit of this matter and deliver it up to the appellant Home Depot.

“John Laskin J.A.”

“M. Rosenberg J.A.”

“Paul Rouleau J.A”.