Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210322 DOCKET: C67540

Doherty, Roberts and Harvison Young JJ.A.

BETWEEN

Royal Bank of Canada Plaintiff (Respondent)

and

1643937 Ontario Inc. , Lorraine MacDonald , Shawn McHale, Patrick McHale , and Beverly McHale Defendants (Appellants)

Counsel: Jonathan C. Lisus and Zain Naqi, for the appellants J. Ross Macfarlane, for the respondent

Heard: in writing

On appeal from the judgment of Justice Heather J. Williams of the Superior Court of Justice, dated September 16, 2019, with reasons reported at 2019 ONSC 5145, and from the costs order, dated January 2, 2020, with reasons reported at 2020 ONSC 44.

Costs Endorsement

[1] On February 19, 2021, we allowed the appeal in part from the dismissal of the appellants’ action with costs to the appellants of $15,000 as agreed by the parties. With respect to the appellants, we set aside the $84,490.38 costs award that was granted by the motion judge to the respondent jointly and severally against the appellants and 1643937 Ontario Inc. We remitted for trial the narrow issue of the scope of the appellants’ liability under their personal guarantees, having regard to the appellants’ allegations of misrepresentations that they say were made by the respondent. We otherwise dismissed the appeal.

[2] The parties have not reached an agreement on the disposition of the costs from their respective motions for summary judgment. We invited the parties to provide brief written submissions, plus costs outlines, which they have delivered, and we have reviewed.

[3] The appellants seek partial indemnity costs on the motions in the amount of $30,000. The respondent submits that it is entitled to its costs on the motions in the amount of $37,500, less the $15,000 appeal costs award granted to the appellants. The respondent says that the balance of the costs of the action to‑date should be reserved to the trial judge.

[4] The disposition of the costs on the motions and the action to-date should be reserved to the trial judge. While the appellants prevailed on the narrow issue remitted for trial, the motions below also concerned several other issues, including the appellants’ counterclaims, that were not pursued on appeal. The trial judge will be best placed to assess these costs in the context of the final disposition of the action.

[5] Accordingly, we order that the costs on the parties’ respective motions for summary judgment and the action to-date are reserved to the trial judge.

[6] In response to the respondent’s inquiry, we clarify that the motion judge’s $84,490.38 costs order was set aside in relation to the appellants only but still stands as against 1643937 Ontario Inc.

[7] The respondent has invited us to revisit paragraph 44 of our reasons. We see no basis to do so.

“Doherty J.A.”

“L.B. Roberts J.A.”

“A. Harvison Young J.A.”