Court of Appeal for Ontario

CITATION: Scamurra v. Sandy Scamurra & Sons Limited, 2016 ONCA 446

DATE: 20160607

DOCKET: C60913

Strathy C.J.O., Lauwers and Benotto JJ.A.

BETWEEN

Sandy Scamurra

Applicant

(Respondent/Appellant by Cross-Appeal)

and

Sandy Scamurra & Sons Limited, Sandy Scamurra Contracting Ltd., 726127 Ontario Inc., Albert Scamurra, Felix Scamurra, AFJ Disposal Inc., TD Canada Trust and Royal Bank of Canada

Respondents

(Appellants/Respondents by Cross-Appeal)

Counsel:

Michael N. Freeman, for the appellants/respondents by cross-appeal

Albert Campea, for the respondent/appellant by cross-appeal

Heard: March 18, 2016

On appeal from the judgment of Justice Gordon D. Lemon of the Superior Court of Justice, dated August 7, 2015.

COSTS ENDORSEMENT

[1] The appellants were successful in the appeal, the cross-appeal and in relation to the respondent’s motion to admit fresh evidence. Notwithstanding the respondent’s lack of success, he seeks costs. He relies on the share purchase agreement which provides that the appellants are liable to him for all his costs incurred “in the event of default” by the appellants. The respondent submits that this provision extends to his costs in relation to the matters before this court.

[2] We do not agree. The provision in the share purchase agreement cannot be used to indemnify the respondent for unsuccessfully responding to an appeal, launching an unsuccessful cross-appeal and submitting a failed motion for fresh evidence.

[3] The appellants are entitled to costs on a partial indemnity basis, fixed at $20,000 inclusive of disbursements and taxes.

“George R. Strathy C.J.O.”

“P. Lauwers J.A.”

“M.L. Benotto J.A.”