COURT OF APPEAL FOR ONTARIO

CITATION: Sistem Mühendislik İnşaat Sanayi Ve Ticaret Anomic Sirketi v. Kyrgyz Republic, 2015 ONCA 666

DATE: 20151001

DOCKET: C58711

Hoy A.C.J.O., Feldman and Lauwers JJ.A.

BETWEEN

Sistem Mühendislik İnşaat Sanayi Ve Ticaret Anomic Sirketi

Respondent

and

Kyrgyz Republic and Kyrgyzaltyn JSC

Appellant

Counsel:

J. Brian Casey and Matt Saunders, for the appellant

George J. Pollack and Steven G. Frankel, for the respondent

Reasons released: June 19, 2015

ENDORSEMENT ON DISPOSITION OF COSTS BELOW

[1] Following release of the Reasons for decision and costs on appeal, the parties were unable to agree on the disposition of costs below and asked to make further submissions on that issue. The court has now reviewed those submissions.

[2] The appellant was successful on the appeal, based on the respondent’s failure to properly serve the Republic with the originating documents for this application. The court ordered a new hearing and did not address the merits of the issues that were decided by the application judge.

[3] The court understands that the respondent intends to proceed with a new hearing of the application. The respondent submits that the costs below should be determined by the judge on the new hearing because, although the appellant was successful on the appeal, it should not be awarded the costs of the original application as those costs relate to the argument on the merits, which the appellant lost and which this court did not address.

[4] The appellant makes allegations of bad faith against the respondent and its counsel for the failure to properly serve the Republic and advise the court. These allegations are misplaced. No such finding was made by this court.

[5] In our view, there is merit in the position taken by the respondent. The court therefore orders that the costs below, fixed in the amount of $100,000 inclusive of disbursements and HST, will be in the cause of the application, on the understanding that the application judge will take into account any duplication in the preparation for the new application in awarding costs of the new application. If the respondent does not proceed with the application within three months of the release of these reasons, then the costs of the proceeding below, as determined in this paragraph, will go to the appellant.

“Alexandra Hoy A.C.J.O.”

"K. Feldman J.A."

"P. Lauwers J.A."