Court of Appeal for Ontario

Citation: Lixo Investments Limited v. FCHT Holdings (Ontario) Corporation et al., 2017 ONCA 239

Date: 2017-03-24

Docket: C62243

Judges: Rouleau, Pepall and Roberts JJ.A.

Between

Lixo Investments Limited Appellant (Applicant)

and

FCHT Holdings (Ontario) Corporation, Priestly Demolition Inc., Traugott Building Contractors Inc., City of Toronto and Ann Borooah, in her capacity as Chief Building Official Respondent (Respondents)

Counsel

For the Appellant: Peter-Paul E. Du Vernet

For the Respondent: Molly Reynolds and Eliot Che

Hearing and Appeal

Heard: March 21, 2017

On appeal from: The order of Justice James Diamond of the Superior Court of Justice, dated June 15, 2016.

Endorsement

[1] The respondent acquired 86 Yorkville Avenue several months after a fire originating in the building caused extensive damage to the property and to the appellant's adjoining property at 84 Yorkville Avenue. The properties are semi-detached and share a common dividing wall. The appellant brought an application seeking various relief, including recovery of losses suffered as a result of the fire and subsequent conduct of the respondent and its predecessor in title that impaired the appellant's ability to use its property.

[2] The appellant argues that the application judge erred in dismissing part of the relief sought. Specifically, it argues that the application judge erred in concluding that the respondent did not, as a result of it having purchased 86 Yorkville Avenue, become liable for the damages allegedly caused to the appellant prior to the respondent's purchase of 86 Yorkville Avenue.

[3] We disagree with the appellant's submission. In our view, the application judge committed no reversible error.

[4] On the facts of this case, the respondent had no involvement in and cannot be responsible for the appellant's damages accrued before the respondent acquired 86 Yorkville Avenue. As acknowledged by the respondent, the application judge's decision does not prevent the appellant from proceeding with its claims against the respondent for any damages suffered by the appellant during the period of the respondent's ownership of the property that are caused by the respondent's tortious conduct.

[5] We also see no basis to interfere with the application judge's costs award. Deference is owed to judges' determination of the appropriate award of costs. We see no basis to interfere with the application judge's decision.

[6] The respondent seeks $37,927.89 in partial indemnity costs for the appeal. In our view this amount is excessive in light of the nature of the appeal and taking into account the reasonable expectations of the parties. Of note is the fact that, had the appellant been successful, it sought only $10,261.13.

[7] As a result, the appeal is dismissed. The respondent is entitled to its costs on a partial indemnity basis fixed in the amount of $10,000 inclusive of disbursements and applicable taxes.

"Paul Rouleau J.A."

"S.E. Pepall J.A."

"L.B. Roberts J.A."