Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 381

COURT OF APPEAL FOR ONTARIO

DATE: 20210602 DOCKET: C67533 and C67557

Judges: Gillese, Lauwers and Benotto JJ.A.

DOCKET: C67533

BETWEEN

Fram Elgin Mills 90 Inc. (formerly Frambordeaux Developments Inc.) Plaintiff

and

Romandale Farms Limited, Jeffrey Kerbel, 2001251 Ontario Inc. and First Elgin Developments Inc. Defendants (Respondent/Appellants)

AND BETWEEN

Fram 405 Construction Ltd. and Bordeaux Homes Inc. Plaintiffs

and

Romandale Farms Limited, 2001251 Ontario Inc., First Elgin Developments Inc. and Jeffrey Kerbel Defendants (Respondent/Appellants)

AND BETWEEN

Romandale Farms Limited Plaintiff (Respondent)

and

2001251 Ontario Inc. Defendant (Appellant)

AND BETWEEN

2001251 Ontario Inc. Plaintiff (Appellant)

and

Romandale Farms Limited Defendant (Respondent)

DOCKET: C67557

BETWEEN

Fram Elgin Mills 90 Inc. (formerly Frambordeaux Developments Inc.) Plaintiff (Appellant)

and

Romandale Farms Limited, Jeffrey Kerbel, 2001251 Ontario Inc. and First Elgin Developments Inc. Defendants (Respondent)

AND BETWEEN

Fram 405 Construction Ltd. and Bordeaux Homes Inc. Plaintiffs (Appellant)

and

Romandale Farms Limited, 2001251 Ontario Inc., First Elgin Developments Inc. and Jeffrey Kerbel Defendants (Respondent)

AND BETWEEN

Romandale Farms Limited Plaintiff

and

2001251 Ontario Inc. Defendant

AND BETWEEN

2001251 Ontario Inc. Plaintiff

and

Romandale Farms Limited Defendant

Counsel:

Chris G. Paliare and Tina H. Lie, for the appellants Jeffrey Kerbel, 2001251 Ontario Inc., and First Elgin Developments Inc. (C67533) Sheila R. Block, Jeremy Opolsky, Sara J. Erskine, and Benjamin Lerer for the appellants Fram Elgin Mills 90 Inc. (formerly Frambordeaux Developments Inc.) and Fram 405 Construction Inc. (C67557) Sarit E. Batner, Kosta Kalogiros, and Avi Bourassa, for the respondent Romandale Farms Limited (C67533 and C67557)

Heard: September 8 and 9, 2020 by video conference

On appeal from the judgment of Justice Nancy J. Spies, of the Superior Court of Justice, dated September 13, 2019, with reasons reported at 2019 ONSC 5322, and from the costs order, dated April 2, 2020.

COSTS ENDORSEMENT

[1] Four actions involving the Lands in this proceeding were tried together in the fall of 2018 (the “Actions”). Romandale was awarded costs of the Actions, on a substantial indemnity basis, in the amount of $2,708,651.57. Those costs were made payable on a joint and several basis by Fram and Kerbel.

[2] Fram and Kerbel each appealed to this court. Their appeals were consolidated (the “Appeals”). The Appeals were successful. The parties agreed on costs of the Appeals but were unable to resolve the matter of costs below. This costs endorsement decides that matter.

[3] For the reasons that follow, Fram and Kerbel are entitled to partial indemnity costs for the Actions, in the amounts that each sought.

The Parties’ Positions

Fram

[4] Fram seeks partial indemnity costs of $1,147,595.63 for the Actions. It did not succeed on its 2007 and 2008 Actions and did not appeal the trial decisions on them. Nonetheless, Fram argues, as a result of the Appeals, it has achieved overall success and is entitled to its costs of the Actions.

[5] Fram also relies on having beat the offer to settle the litigation which it and Kerbel jointly made in September 2018 (the “Settlement Offer”), just before the trial of the Actions. Romandale rejected their Settlement Offer. At the oral hearing of the Appeals, the parties each stated that entitlement to costs of the Actions was on a partial indemnity basis. Accordingly, Fram did not advance a claim for enhanced costs under r. 49.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[6] Finally, Fram contends that its costs are fair and reasonable.

Kerbel

[7] Kerbel seeks partial indemnity costs of $956,002.50 for the Actions. It says those costs are fair and reasonable and reflect its overall success. Kerbel contends that the Actions, although not formally consolidated, were effectively consolidated with the evidence being used, and argument permitted, on all issues by all parties. Moreover, it points out that Romandale sought – and was awarded – costs of the Actions against Kerbel and Fram on a joint and several basis.

[8] Like Fram, Kerbel also relies on the fact that it beat the Settlement Offer.

Romandale

[9] Romandale accepts that Fram and Kerbel are entitled to their partial indemnity costs of the 2014 and 2016 Actions in which Kerbel claimed specific performance of the 2005 August Agreement. However, it submits that neither Fram nor Kerbel are entitled to costs of the 2007 and 2008 Actions which Fram unsuccessfully prosecuted against Romandale. As Fram did not appeal the results of those actions, Romandale’s success on those actions stands. Thus, Romandale submits, Fram should pay Romandale its partial indemnity costs of the 2007 and 2008 Actions and Kerbel is not entitled to its partial indemnity costs relating to those Actions.

Analysis

[10] Costs are not to be determined by considering success on an issue by issue basis. Rather, they are to be based on the overall success achieved by a party: Wesbell Networks Inc. v. Bell Canada, 2015 ONCA 33, at para. 21. In the circumstances of these Appeals, the same principle applies: costs of the Actions are to be determined by considering the overall success achieved by the parties as a result of the Appeals.

[11] The Actions were tried together to ensure that the rights and interests of the parties, in the Lands, were properly determined. The Appeals determined those respective rights and interests with the result that Fram and Kerbel achieved overall success. The fact that Fram was unsuccessful on the 2007 and 2008 Actions does not detract from its overall success. Moreover, the Actions were intertwined. As the reasons of this court demonstrate, the evidence relating to the 2007 and 2008 Actions was directly relevant to the disposition of the Appeals. The fact that costs below were awarded jointly and severally as against Fram and Kerbel, in accordance with Romandale’s request, is telling in this regard. Had the Actions been severable, as Romandale now maintains, costs of the 2007 and 2008 Actions would have been payable by Fram alone. Instead, Fram and Kerbel were held jointly and severally responsible for costs of all of the Actions.

[12] Further and importantly, Fram and Kerbel achieved greater success on the Appeals than their Settlement Offer, which Romandale rejected.

[13] We are satisfied that Fram and Kerbel’s partial indemnity costs are reasonable. This can be seen by comparing them to Romandale’s partial indemnity costs of $2,283,089.26 for the Actions. As well, the amounts claimed and recovered were significant. The market value of the Lands in 2018 was $50,000,000. Finally, the matters in issue were complex, numerous, and very important to all the parties.

Disposition

[14] Accordingly, Fram and Kerbel are entitled to partial indemnity costs of the Actions in the amounts that each claimed.

“E.E. Gillese J.A.” “P. Lauwers J.A.” “M.L. Benotto J.A.”