Court of Appeal for Ontario

Citation: Remo Valente Real Estate (1990) Limited v. Portofino Riverside Tower Inc., 2012 ONCA 51

Date: 2012-01-26

Docket: C53256

Before: Doherty, Goudge and Epstein JJ.A.

Between:

Remo Valente Real Estate (1990) Limited

Plaintiff (Appellant)

and

Portofino Riverside Tower Inc., Westview Park Gardens (2004) Inc., Portofino Corporation and Dante J. Capaldi

Defendants (Respondents)

Counsel:

Gino Morga and Michelle D. Reynolds, for the appellant

William V. Sasso and Jacqueline A. Horvat, for the respondents

Heard: October 24, 2011

On appeal from the order of the Divisional Court (Hambly, Murray and Ray J.J.) dated February 24, 2010, with reasons by Hambly and Ray J.J. reported at 2010 ONSC 280, 68 B.L.R. (4th) 66.

COSTS ENDORSEMENT

[1] The parties have provided us with detailed costs submissions which we have now reviewed carefully.

[2] The history of these proceedings is a tangled one, to say the least.

[3] The primary issue litigated in the lengthy trial and the appeal from it to the Divisional Court, was the oppression claim. We have concluded that the Divisional Court was correct in deciding that it fails.

[4] However, as we explained in our decision, the trial and the appeal to the Divisional Court left unresolved another significant issue concerning breach of contract. We have directed that this be determined in a new trial.

[5] There is no doubt that the costs to date have been largely incurred to address the oppression issue. As we have indicated, however, this was not the only issue between the parties. A fair costs award cannot be made as if it were. Had the unresolved issue been litigated at trial, that could well have determined the appropriate costs order for the entire proceedings, including the oppression issue.

[6] In our view, responsibility for failure to litigate the contract issue is divided. The appellant pursued the oppression remedy single-mindedly at trial and in the Divisional Court. However, in this court it also raised the contract issue, and once the respondents made clear the shared contractual responsibility of the three corporate respondents, a new trial was obviously needed if all issues between the parties were to be resolved. We allowed the appeal, and so ordered. In that sense, although it lost the oppression issue, the appellant succeeded on the appeal.

[7] In applying the usual "loser pays" basis for costs, we have considered whether to attempt to allocate responsibility for the history of and current state of this litigation. In a broad sense, while the appellant might be assigned more responsibility for the costs devoted to the oppression claim, the reverse might be said for the contract issue remaining still unresolved. Put another way, while the respondent could be said to have succeeded on the oppression issue, the appellant could be said to have succeeded on the appeal.

[8] Any attempt in these circumstances to fine tune relative degrees of responsibility would necessarily be arbitrary in our view.

[9] We conclude that the fair costs award in these unusual circumstances is that each side bear its own costs throughout. We therefore order no costs here or below. Costs of the new trial will of course be for the trial judge.

"Doherty J.A."

"S.T. Goudge J.A."

"G.J. Epstein J.A."