Court File and Parties

COURT OF APPEAL FOR ONTARIO 2021 ONCA 656 DATE: 20210922 DOCKET: C67165

Before: Simmons, Pepall and Trotter JJ.A.

BETWEEN

31 Kingsbury Inc. Plaintiff (Appellant)

and

Delta Elevator Company Limited Defendant (Respondent)

Counsel: James M. Wortzman, for the appellant Charles M. Gastle and Heather M. Gastle, for the respondent

On appeal from the judgment of Justice Mario Faieta of the Superior Court of Justice, dated June 10, 2019, with reasons reported at 2019 ONSC 3619, 99 C.L.R. (4th) 360.

Costs Endorsement

[1] The appellant abandoned this appeal on the eve of the appeal hearing date by notice of abandonment dated February 5, 2020. The respondent seeks costs of the appeal on a substantial indemnity basis in the amount of $22,926.38, or, in the alternative, partial indemnity costs of $15,713.48. The appeal related to a judgment enforcing a settlement agreement that required the appellant to pay the respondent $88,558.10, which was the balance owing for elevators installed in September 2017. The respondent points to the appellant’s actions in creating as much delay as possible to support its claim for substantial indemnity costs.

[2] The appellant submits this court does not have jurisdiction to make a costs award because r. 61.14(3) provides that where an appeal is abandoned (or deemed abandoned) the appeal is at an end. The appellant asserts costs should be assessed as permitted under r. 58.07 by filing the notice of abandonment with the office of the assessment officer. In the alternative, the appellant submits that, given the amount in dispute and the quantum of its costs, a just and proportionate award would be 50 percent of the partial indemnity costs the respondent claims.

[3] We are satisfied we have jurisdiction to award costs of an abandoned appeal. Although r. 61.14(3) stipulates that an appeal “is at an end” once abandoned (or deemed abandoned), nothing in r. 61.14(3) displaces this court’s discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C43 to award and fix costs. On the contrary, r. 61.14(3) and r. 61.14(4) demonstrate this court’s continuing jurisdiction in relation to the costs of an abandoned appeal. Rule 61.14(3) stipulates that, subject to subrule (4), where an appeal is an abandoned, the respondent is entitled to the costs of the appeal. Rule 61.14(4) provides that the abandonment of an appeal shall be without costs if the respondent did not file a response to the appeal “unless a judge of the appellate court orders otherwise.” Rule 58.07, on which the appellant relies, does no more than permit an assessment officer to assess costs where they have not been fixed by the court.

[4] Although we are not satisfied the circumstances of this case justify an award of substantial indemnity costs, the circumstances do support an award of partial indemnity costs that will compensate the respondent appropriately for the work done to prepare for the appeal. Costs of the appeal are to the respondent on a partial indemnity scale fixed in the amount of $15,000 inclusive of disbursements and applicable taxes.

Janet Simmons J.A. S.E. Pepall J.A. Gary Trotter J.A.