Court of Appeal for Ontario

Date: 2018-06-01 Docket: C63272

Panel: Laskin, Feldman and Miller JJ.A.

Between

Faigie Abrahamovitz and Frances Spiro Plaintiffs (Respondents)

and

Mark Berens, Megapro Property Management Ltd., 3030 Danforth Ltd., T.W.M. Consolidated Holdings Inc., and Lois Kalchman Defendants

Counsel

Samuel S. Marr and Zachary Silverberg, for the appellant, the Estate of Gabriel Zimmerman

David P. Jacobs, for the respondents

Heard

August 21, 2017

On Appeal

On appeal from the order of Justice Robert F. Goldstein of the Superior Court of Justice, dated January 11, 2017, with reasons reported at 2017 ONSC 184.

Costs Endorsement

[1] On March 15, 2018, this court released its decision allowing the appeal of the appellant, the Estate of Gabriel Zimmerman, and awarding the Estate its costs of the appeal: see Abrahamovitz v. Berens, 2018 ONCA 252.

[2] On April 11, 2018, the Estate wrote to the panel asking for an opportunity to make submissions on the issue of costs of the motion below. In a letter dated April 18, 2018, we directed the parties to provide written submissions on what amount the Estate was entitled to, as well as what amount, if any, should be awarded to the defendants, given that they participated in the motion below but not on the appeal. We have now received and reviewed those submissions.

[3] The Estate submits that it should be awarded $24,655.00, or the amount of costs originally awarded against it by the motion judge, modified to reflect a partial indemnity scale. The Bill of Costs the Estate submitted indicates its actual partial indemnity costs were $10,288.55, including HST and disbursements.

[4] The respondents submit that, because this court granted the appeal on the issue of adding the Estate to the litigation, but did not address a secondary issue – whether the defendants should be granted an interpleader order – there was mixed success on the motion below, such that each party should bear its own costs. Alternatively, the respondents submit that the Estate should not be granted the $24,655.00 it seeks; any costs awarded should be limited to the Estate's actual partial indemnity costs.

[5] The Estate also submits that the defendants are entitled to costs on the motion below. Although they did not participate in the appeal, given our decision on appeal, they are now at least partially successful. The respondents do not address this issue.

[6] We agree with the Estate that it is entitled to its costs on the motion below. The main focus of this appeal and of the motion below was the issue that the Estate successfully appealed: whether it was entitled to be added as a party to the underlying action. However, we agree with the respondents that the Estate's costs should be limited to the actual partial indemnity costs it incurred.

[7] We also agree with the Estate that the defendants are entitled to their costs on the motion below on a partial indemnity basis. In its written materials, the Estate provided a copy of the defendants' certified Bill of Costs from the motion below, which evidences partial indemnity costs of $8,227.97, inclusive of disbursements and HST.

[8] We therefore order the respondents pay the Estate and the defendants their costs of the motion below, fixed in the amount of $10,000, inclusive of disbursements and HST, payable to the Estate and $8,000, inclusive of disbursements and HST, payable to the defendants.

"John Laskin J.A"

"K. Feldman J.A."

"B.W. Miller J.A."