COURT OF APPEAL FOR ONTARIO

CITATION: Hollowcore v. Visocchi, 2016 ONCA 761

DATE: 20161014

DOCKET: C59540 and C59541

Weiler, Cronk and Benotto JJ.A.

BETWEEN

Hollowcore Incorporated and Prestressed Systems Inc.

Plaintiffs (Respondents/Respondents by way of cross-appeal)

and

Michael Visocchi and Visco Engineering Inc.

Defendants (Appellants/Respondents by way of cross-appeal)

and

The Royal Insurance Company of Canada, Continental Casualty Company and Certain Underwriters at Lloyd’s Under Contract No. ENC5-98

Third Parties (Respondents/Appellants by way of cross-appeal)

COUNSEL:

Alan J. Lenczner, Q.C., and Ren Bucholz, for the appellants/respondents by way of cross-appeal, Michael Visocchi and Visco Engineering Inc.

Peter W. Kryworuk, Jasmine T. Akbarali and D. Stephen Jovanovic, for the respondents/respondents by way of cross-appeal, Hollowcore Incorporated and Prestressed Systems Inc.

Morris A. Chochla and Mark A.D. Coleman, for the respondents/appellants by way of cross-appeal, The Royal Insurance Company of Canada, Continental Casualty Company and Certain Underwriters at Lloyd’s Under Contract No. ENC5-98

Heard: April 13 and 14, 2016

On appeal from the judgment of Justice Mary Jo M. Nolan of the Superior Court of Justice, dated November 4, 2014, with reasons reported at 2014 ONSC 6802, 40 C.C.L.I. (5th) 17.

COSTS ENDORSEMENT

[1] The following is a brief explanation of our conclusion with respect to the various claims for costs of the appeal and cross-appeal.

[2] The appellants initially raised several issues on appeal that engaged the respondents and the third parties. During oral submissions, the issues were simplified and presented as two alternative grounds. The first ground – accepted by the Court – was that the trial judge erred in apportioning damages between the appellants and the third parties because her findings made it clear that all the damages should be paid by the third parties. This ground of appeal did not engage the respondents. However, the respondents had been required to address all issues. They are therefore entitled to costs against the appellants.

[3] The appellants and the respondents were successful against the third parties and are entitled to costs.

[4] Lastly, in their written submissions, the appellants sought a reallocation of their trial costs apparently paid by the third parties pursuant to an agreement. There is nothing in the record about the nature of the agreement or the quantum of the payment and the matter was not raised in the appeal. We make no order in this regard.

[5] We therefore make the following orders as to costs:

(1) The third parties will pay partial indemnity costs as follows:

(a) $50,000 to the appellants;

(b) $75,000 to the respondents.

(2) The appellants will pay $30,000 partial indemnity costs to the respondents.

[6] The above costs are inclusive of disbursements and HST.

“K.M. Weiler J.A.”

“E.A. Cronk J.A.”

“M.L. Benotto J.A.”