Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20210518 DOCKET: C68360
Lauwers, Miller and Nordheimer JJ.A.
BETWEEN
Atlas (Brampton) Limited Partnership, Romlex International Ltd. and Peter Grigoras Applicants (Appellants)
and
Canada Grace Park Ltd., Zing Ou Yang and Atlas Sprinkbank Developments Ltd. Respondents (Respondents)
Counsel: Jeffrey A. Kaufman, for the appellants Paul H. Starkman, for the respondents
Heard: in writing
On appeal from the judgment of Justice David Aston of the Superior Court of Justice, dated April 6, 2020, with reasons reported at 2020 ONSC 1861.
COSTS ENDORSEMENT
[1] On April 9, 2021, we released our decision in which we dismissed the appeal in this matter. We have now received and reviewed the parties’ submissions on costs.
[2] The respondents ask for their costs of the appeal in the amount of $15,517.16. In addition, the respondents seek a cost award of $10,335.06 for certain motions that were brought in advance of the appeal but which did not proceed because the hearing of the appeal was set before those motions were ready to be heard. The appellants’ motion was for an interim injunction to restrain the respondents from disposing of the subject property, pending the disposition of this appeal. The respondents brought a motion for security for costs.
[3] The appellants submit that there should be no costs of the appeal because success was divided. In the alternative, the appellants submit that there should be no award of costs because the issues raised were novel. In the further alternative, the appellants submit that the costs awarded should be reduced to reflect the divided result. On the issue of the motions brought, the appellants submit that there is no basis for costs to be awarded as neither motion proceeded.
[4] We do not accept that there was divided success on the appeal. The respondents were wholly successful in upholding the application judge’s decision. The fact that the reasoning was different in this court than in the court below does not constitute divided success. This is not a case like Schill & Beninger Plumbing & Heating Ltd. v. Gallagher Estate (2001), 140 O.A.C. 353 (C.A.), 6 C.P.C. (5th) 80, where no costs were awarded because the appellant was unsuccessful on her appeal but for one issue.
[5] We also do not accept that the issues raised were “novel” as that concept is properly understood in the context of costs: Przyk v. Hamilton Retirement Group Ltd. (c.o.b. Court at Rushdale), 2021 ONCA 267, at para. 35.
[6] Finally, the fact that the motions were overtaken by the appeal hearing does not mean that there should not be any award of costs with respect to them. Costs would have been incurred by the respondents, both in bringing their motion and in responding to the appellants’ motion. However, the fact that the motions were never argued should result in a significantly reduced award of costs.
[7] In our view, an award of costs to the respondents in the amount of $15,000, inclusive of disbursements and HST, is a fair and reasonable amount to fix for the costs of the appeal. An award of costs to the respondents in the amount of $5,000, inclusive of disbursements and HST, is a fair and reasonable amount to fix for the costs of the two motions.
“P. Lauwers J.A.”
“B. W. Miller J.A.”