Court of Appeal for Ontario

Citation: Walchuk v. Houghton, 2016 ONCA 839

Date: 2016-11-08

Docket: C60317

Before: Feldman, Simmons and Lauwers JJ.A.

Between:

Mary Walchuk, Estate trustee for Walter Walchuk, deceased Plaintiff (Respondent in Appeal)

and

Walter Houghton also known as Wilfred Houghton also known as Wilfred W. Houghton also known as Wilfred P. Houghton Defendant (Appellant)

Counsel: Michael Jaeger, for the appellant Andrew Sheremeta, for the respondent

Heard: August 22, 2016

On appeal from the judgment of Justice R. John Harper of the Superior Court of Justice, dated March 9, 2015 with reasons reported at 2015 ONSC 1291.

COSTS ENDORSEMENT

[1] For the reasons reported at 2016 ONCA 643, this court allowed the appeal by the defendant from a procedural ruling by Harper J., with reasons reported at 2015 ONSC 1291, regarding a contempt motion brought by the plaintiff, Walchuk. This court ruled the defendant’s failure to bring documents ordered by the motion judge to be brought to the examination could not support a finding of contempt, because an examination in aid of execution was a proceeding intended to be stayed by operation of s. 69.3 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3. This court ordered $11,500 to the appellant which, as a result of previous costs orders, netted to the amount of $10,000, all-inclusive to be paid by the respondent to the appellant.

[2] However, the parties neglected to address the court on the costs of the proceeding before the motion judge. The appellant asks the court to deal with those, even though the motion judge has not yet made a costs award. The usual, though not invariable, practice in this court is to reverse the costs order in the court whose decision was successfully appealed.

[3] The appellant seeks costs in the amount of $20,000 all-inclusive against a full indemnity bill including taxes and disbursements totalling about $28,000, all related to post-bankruptcy litigation. The appellant also states that in June, 2016, he offered to settle all costs below at $35,000 but the respondent did not accept the offer.

[4] We do not agree with the respondent that the motion judge should be requested to set costs, since this would only add time and expense. The respondent argues that the appellant should not receive any costs, but if costs are awarded in relation to the contempt motion, “then it should certainly be a lot less than the $10,000 he has already been awarded in costs for the entire appeal proceeding.”

[5] There is no reason that costs should not follow the event, as in the normal course. Given the comparative reasonable time requirements of the original motion and the appeal, we set costs of the motion before Harper J. at $15,000 all-inclusive, payable by the respondent to the appellant.

“K. Feldman J.A.”

“Janet Simmons J.A.”

“P. Lauwers J.A.”