COURT OF APPEAL FOR ONTARIO

2016 ONCA 436

DATE: 20160602

DOCKET: C59429

Cronk, Pepall and Miller JJ.A.

BETWEEN

Deslaurier Custom Cabinets Inc.

Respondent (Plaintiff)

and

1728106 Ontario Inc. and John Faught Steel Inc.

Appellant (Defendants)

D.H. Rogers, Q.C. and Rebecca Moore, for the appellant

Matthew J. Halpin and Jenna Anne de Jong, for the respondent

Heard: October 16, 2015

On appeal from the judgment of Justice Monique Métivier of the Superior Court of Justice, dated October 1, 2014, with reasons reported at 2014 ONSC 5148, and 2014 ONSC 5533.

COSTS ENDORSEMENT

[1] This court released its judgment in this matter on April 4, 2016: Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2016 ONCA 246. The court granted the appellant, 1728106 Ontario Inc., its costs of the appeal in the total amount of $25,000, inclusive of disbursements and applicable taxes, and requested the parties’ further submissions regarding the appellant’s costs of the underlying action, excluding any costs associated with its cross-claim against John Faught Steel Inc.

[2] The court has now received and reviewed those further submissions, together with additional costs submissions delivered by Tierney Stauffer LLP on behalf of the appellant and its shareholders relating to matters described in that firm’s submissions.

[3] Based on the matters at issue on this appeal and in the underlying action, the parties’ positions and the participation of involved counsel, we conclude that the appellant is entitled to its costs of the underlying action, including its costs of the summary judgment motions but excluding costs associated with its cross-claim against John Faught Steel Inc., on a partial indemnity basis, in the total amount of $65,231.79. We make no order in respect of the costs sought by Tierney Stauffer LLP. Those costs, in our view, are not properly recoverable in the proceeding before this court emanating from the main action.

[4] Accordingly, the costs order of Métivier J. dated October 1, 2014 is set aside and an order is substituted in its place granting the appellant costs of $65,231.79 in accordance with these reasons.

“E.A. Cronk J.A.”

“S.E. Pepall J.A.”

“B.W. Miller J.A.”