Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220728 DOCKET: C67501 & C67502

Strathy C.J.O., Roberts and Sossin JJ.A.

In the Matter of the Bankruptcy of Golden Oaks Enterprises Inc. and Joseph Gilles Jean Claude Lacasse, of the City of Ottawa, in the Province of Ontario

BETWEEN

Doyle Salewski Inc. in its capacity as Trustee in Bankruptcy of Golden Oaks Enterprises Inc. and Joseph Gilles Jean Claude Lacasse Plaintiff (Respondent/Appellant by way of cross-appeal)

and

Lorne Scott, Monique Lalonde, Paul Lalonde, Marc Laframboise, Janet Arsenault, Jeremy Mitchell, Josée Bouchard, Le Thu Nguyen, Ronald Leduc, 204475 Ontario Inc., Mark McKenna, Judy McKenna, Susan McKillip, 1531425 Ontario Inc., Joe Messa and Ernest Toste Defendants (Appellants / Respondents by way of cross-appeal)

Counsel: Alyssa Tomkins, for the appellants/respondents by way of cross-appeal Harvey Chaiton and Doug Bourassa, for the respondent/appellant by way of cross-appeal

Heard: February 16, 2022 by video conference

On appeal from the judgment of Justice Sally Gomery of the Superior Court of Justice, dated August 30, 2019, with reasons reported at 2019 ONSC 5108, 76 C.B.R. (6th) 3.

Costs Endorsement

[1] This appeal dealt with a dispute between the appellant investors and the respondent trustee in bankruptcy of a failed financial company over the trustee’s attempts to recover the funds lost to a Ponzi scheme.

[2] The appeal was dismissed and the cross-appeal by the respondent trustee was allowed in part.

[3] At the end of the reasons for decision, now reported at 2022 ONCA 509, the parties were invited to provide submissions on costs.

[4] The costs submissions of the respondent trustee were filed on July 15, 2022. The costs submissions of the appellants were filed on July 19, 2022.

[5] The respondent trustee seeks costs on a partial indemnity basis of $85,000, inclusive of taxes and disbursements. The respondent justifies this quantum, in part, on the basis of the complexity of the case, the novelty of the corporate attribution arguments in the appeal, and the added cost of post-hearing submissions.

[6] In their submissions, the appellants argue that the costs sought by the respondent are excessive. They submit that the respondent’s choice to retain two senior Toronto counsel, who bill at a higher rate, contributed to the significant disparity between their costs and the costs sought by the respondent. Their own full indemnity costs, had they been successful, would have been approximately $79,000, which is less than the respondent’s partial indemnity costs. In the circumstance, the appellants argue that costs to the respondent of $30,000 would be appropriate.

[7] The overriding principle in assessing costs is that the award must be fair and reasonable: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 24.

[8] In this case, a fair and reasonable costs award must take into consideration that the respondent was not successful on every issue in the cross-appeal, as well as the significant disparity between its costs and the appellants’ costs.

[9] In light of the submissions of the parties, and taking these factors into consideration, a costs award in favour of the respondent of $40,000, all inclusive, is fair and reasonable.

“G.R. Strathy C.J.O.”

“L.B. Roberts J.A.”

“L. Sossin J.A.”