COURT OF APPEAL FOR ONTARIO

CITATION: 2257573 Ontario Inc. v. Furney, 2022 ONCA 552

DATE: 20220721

DOCKET: C68734

Brown, Roberts and Paciocco JJ.A.

BETWEEN

2257573 Ontario Inc.

Plaintiff/Defendant by Counterclaim (Respondent)

and

Alex Aiden Fitzgerald Furney also known as Alex Furney, Maryam Furney and Hassan Hashemi

Defendants/Plaintiffs by Counterclaim (Appellants)

Counsel:

Stephen Dyment, for the appellants Alex Furney and Maryam Furney

Hassan Hashemi, acting in person

Howard W. Reininger, for the respondent

Heard: June 14, 2022 by videoconference

On appeal from the judgment of Justice James R. H. Turnbull of the Superior Court of Justice, dated October 14, 2020, with reasons reported at 2020 ONSC 6002.

COSTS ENDORSEMENT

[1] On June 30, 2022, we dismissed these grouped appeals from the judgment granted against the appellants in the total amount of $880,642.98, plus interest, and costs in the amount of $63,772.65, plus interest, which was adjudged owing under the respondent’s mortgages. Judgment was granted at first instance on the respondent’s motion for summary judgment because of the appellants’ default under several mortgages and guarantees.

[2] The respondent seeks substantial indemnity costs for the appeal as provided for under the standard charge terms in its mortgages. It asks that the security for costs of the appeal in the amount of $27,389.30 that was paid into court per the December 21, 2021 order of Coroza J.A., sitting as a motion judge of this court, plus accrued interest, be paid out of court to the respondent. They also ask that any amount received in excess of the costs awarded on this appeal be applied towards the trial costs order that remains unpaid. The respondent’s bill of costs attached to its costs submissions sets out $27,289.50 as the substantial indemnity costs claimed for the appeal.

[3] The appellants submit that the costs claimed are excessive and that no costs are appropriate in the circumstances of this case. The Furney appellants also say that what they described as the usual partial indemnity costs of $5,000 would be an otherwise appropriate costs award. The appellants do not appear to contest that courts usually enforce contractual clauses providing for the payment of substantial indemnity costs. However, they argue that the respondent and its counsel have engaged in improper conduct that militates against the usual rule. They repeat the allegations of impropriety, such as those related to the criminal rate of interest which were rejected by the motion judge, and other bald allegations sought to be introduced as fresh evidence, which this panel rejected.

[4] In our view, there is no basis to depart from the contractual terms agreed upon by the parties to the mortgages and guarantees that provided for the payment of the respondent’s substantial indemnity costs in these proceedings. Nor are the respondent’s claimed costs excessive. They are less than the amount of costs assessed by this court to be just as security for the respondent’s appeal costs.

[5] We also agree that it is fair and appropriate to order that the entire amount paid into court as security for costs, plus accrued interest, be paid to the respondent in satisfaction of its appeal costs, as well as payment towards the unpaid trial costs.

Disposition

[6] The appellants are jointly and severally liable to the respondent for its appeal costs in the amount of $27,289.50. The amount of $27,389.30 paid into court as security for costs, plus any accrued interest, shall be immediately paid out to the respondent in payment of the ordered appeal costs and towards the unpaid trial costs order in the amount of $63,772.65 plus interest.

“David Brown J.A.”

“L.B. Roberts J.A.”

“David M. Paciocco J.A.”