Court File and Parties
CITATION: Krizans v. Skurdelis, 2020 ONSC 4386
DIVISIONAL COURT FILE NO.: 271-19
DATE: 20200722
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PATTILLO, LEDERER AND KRISTJANSON JJ.
BETWEEN:
VICTOR KRIZAN and KAREN KRIZAN
Applicants/ Respondents in Appeal
– and –
DAVID JOHN THOMAS SKURDELIS
Respondent/Appellant
Hashin Syed, for the Applicants/ Respondents in Appeal
Peter Kolla, for the Respondent/ Appellant
HEARD: May 25, 2020
Reasons for Decision
L. A. PATTILLO J.:
Introduction
[1] This is an appeal by David John Thomas Skurdelis (“Skurdelis”) from the order of Justice R. Scott (the “Application Judge”) dated June 27, 2019 (the “Order”) which provides, among other things, that the real property located at 371 Brock Street, Kingston (the “Property”), owned equally as co-tenants by Skurdelis and the respondents Victor and Karen Krizan, be sold pursuant to the Partition Act, R.S.O. 1990, c. P.4 (the “Act”).
[2] The Krizans commenced their partition application on February 19, 2019. Following a number of adjournments, some on consent and some court ordered, the application came on before the Application Judge on June 27, 2019.
[3] Skurdelis appeared in person and requested a further adjournment to enable him to retain counsel to respond to the application. After hearing from both the Krizans’ lawyer and Skurdelis, the Application Judge ordered that the Property be listed and sold and set out the terms of sale, including that the net proceeds of the sale be held in trust pending further order of the court.
[4] Skurdelis submits that the Application Judge erred in law in granting the Order by refusing to grant him an adjournment; by misapprehending, failing to appreciate and disregarding evidence; and by providing inadequate reasons for his decision.
[5] For the reasons that follow, I would dismiss the appeal. Given the record before the court together with the transcript of the proceedings on June 27, 2019, I do not consider that the Application Judge erred in refusing to grant Skrudelis an adjournment or that he misapprehended, failed to appreciate or disregarded the evidence in granting the Order. I also am of the view in the circumstances, the Application Judge’s reasons for the Order, although brief, are adequate.
Background
[6] The Property is a rental property in the vicinity of Queens University in Kingston. Skurdelis has owned 50% of the Property since 1989. The Krizans purchased their 50% interest from Skurdelis’ then co-owner on November 23, 2012.
[7] On November 5, 2012, prior to the Krizans’ purchase of their 50% interest, Skurdelis and the Krizans entered into a Co-Ownership Agreement setting out the terms and conditions which governed the purchase and operation of the Property (the “Agreement”).
[8] The Agreement provides, among other things, that they would open a joint bank account for the Property (the “Account”); Skurdelis would administer the Property with regards to collecting the rent, maintenance, and all other tasks associated with the responsible and diligent operation of a rental property including a monthly accounting of revenue and expenses; rental income to be deposited to the Account; municipal taxes, maintenance, capital costs (after discussion and agreement on a payment schedule), insurance and other costs related directly to ownership to be paid from the Account or by each party 50/50.
[9] The Agreement further provides that the parties would obtain a mortgage on the Property for $400,000 for which the Krizans would be responsible for 78.75% ($315,000) and Skurdelis 21.25% ($85,000). The Krizans utilized their share of the mortgage to purchase their interest in the Property and were responsible for paying interest monthly on their share of the outstanding principal.
[10] Section F of the Agreement provides for the division of proceeds in the event of a sale of the Property in circumstances where the fair market value has either increased or decreased. Where the fair market value has increased, the mortgage is to be discharged, the amount of the increase above $630,000 (the agreed fair market value at the time of the Kirzans’ purchase), is to be split equally between Skurdelis and the Kirzans and the balance of the proceeds belong to Skurdelis.
[11] Finally, Section G 1) of the Agreement deals with the termination of the Agreement and provides that either party may terminate the Agreement on 180 days written notice to the other side. The section then sets out two termination scenarios, the first of which provides:
- One party wishes to divest themselves of the property entirely and has no further interest in this agreement. In this instance, the other party shall have the first right of refusal to purchase the terminating party’s share. FMV to be arrived at through formal appraisal. Under this scenario, termination within 24 months of the inception of this agreement will result in the terminating party being liable for the costs of termination as well as the costs initially incurred in setting up the mortgage (lender’s fees, legal fees, appraisal, etc.). Termination beyond 24 months will result in said fees being split equally among the parties.
[12] By 2018, significant issues had arisen in respect of Skurdelis’ administration of the Property. The Krizans alleged that Skurdelis utilized rental income for his personal benefit, failed to pay expenses, failed to provide financial reconciliations as agreed and failed to maintain the Property in rentable condition. Further, Skurdelis was unresponsive to the Krizans’ inquiries over long periods of time.
[13] In late November 2018, the Krizans and Skurdelis reached an agreement to sell the Property. Skrudelis undertook to market the Property without a realtor but nothing happened. By early January 2019, as a result of their serious concerns about Skurdelis’ failure to market the Property, the Krizans retained Paul G. Andrews to act for them.
[14] On January 11, 2019, Mr. Andrews wrote to Skurdelis seeking confirmation that he would “cooperate fully” in respect of the sale of the Property. On January 16, 2019, Skurdelis replied indicating that he intended to fully cooperate with the sale of the Property. He took issue with the Krizans’ allegations against him and blamed the delay in the sale on the Krizans not co-operating.
[15] By this time, the Krizans had lost confidence in Skurdelis’ ability to market the Property. On January 23rd, Mr. Andrews responded to Skurdelis advising him that the Krizans wanted the Property to be marketed and sold by a professional realtor. He requested that Skurdelis provide three proposed realtors, failing which the Krizans would commence a Partition Act application.
[16] On February 4, 2019, Skurdelis listed the Property on the Realtor.ca MLS system for $799,000 without the involvement of a realtor. On February 10, 2019, without the Krizans’ consent, he entered a one-year lease for the Property commencing on May 1, 2019.
[17] As noted, the application was commenced on February 19, 2019. It sought the listing and sale of the Property through a realtor in accordance with detailed terms including how expenses in respect of the Property were to be handled pending a sale; the distribution of the net proceeds of sale in accordance with the terms of the Agreement; and a complete accounting by Skurdelis of all income and expenses in respect of the Property since November 23, 2012 to the closing date.
[18] In support of the application, the Krizans each swore an affidavit setting out the background leading up to it and their allegations concerning Skurdelis’ breaches of the Agreement, the agreement to sell the Property and Skurdelis’ failure to take any steps in that regard. In response, Skurdelis filed an affidavit denying the allegations (not the agreement to sell the Property) and stating that he had listed the Property and entered into the lease.
[19] The application first came on before MacLeod-Beliveau J. on March 21, 2019. Skurdelis appeared in person and advised the court he intended to represent himself. The matter was adjourned to April 18, 2019. Her Honour noted that what appeared to be at issue was control of the sale and strongly urged the parties to come to an agreement as to the terms of the listing and sale failing which the court would set the terms. Her Honour advised Skurdelis to get some legal advice.
[20] Subsequently, the parties engaged in discussions to attempt to resolve their issues, but no agreement was reached.
[21] Skurdelis retained a lawyer on or about April 9, 2019 who requested an adjournment of the April 18th date. The Krizans agreed to adjourn the matter to May 2, 2019 on the agreement of Skurdelis’ lawyer that the date was peremptory. A further adjournment to June 13, 2019 was subsequently requested by Skurdelis’ lawyer and agreed to, also on a peremptory basis.
[22] On May 7, 2019, Skurdelis and his lawyer parted company. Mr. Andrews was advised by the lawyer that Skurdelis had never retained her. Later in May, Mr. Andrews was contacted by another lawyer on behalf of Skurdelis, but that lawyer never went on the record.
[23] On June 7, 2019, Skurdelis filed an affidavit for the purpose of obtaining an adjournment of the June 13th return date. He stated he had obtained a commitment from David Adams, a lawyer in Kingston, that he would be “willing and able to accept my retainer” if the matter was adjourned to an agreeable return date to permit Mr. Adams to “respond, prepare materials, conduct cross-examinations, formalize facts in evidence and argue for the Respondent on the return date.” The affidavit noted that the Krizans had refused to agree to adjourn the June 13th date.
[24] Skurdelis’ June 7th affidavit attached a “with prejudice” offer to settle dated May 20, 2019 whereby he would purchase the Krizans’ half-interest in the Property based on a value of $720,000. The offer provided that Skurdelis would purchase the Krizans’ interest for $343,728 on the condition that the Krizans discharge the mortgage on the Property with an outstanding balance of $359,999.82 together with all penalties, discharge costs and fees and pay Skurdelis any rental shortfalls not capitalized which, based on an attached a six-page “accounting”, Skurdelis said was $12,615.42.
[25] The application came back on before Tranmer J. on June 13, 2019. Skurdelis’ adjournment request was opposed by the Kirzans. His Honour adjourned the matter to June 27, 2019 to allow Skurdelis to retain Mr. Adams and for him to appear on June 27th and “focus this matter as to where its going.” His Honour endorsed the record:
Mr. Skurdelis swears he has made diligent efforts to retain Counsel. In view of his affidavit, it is expected that Mr. Adams will be retained and able to appear on the matter on June 27/19.
Adjourned to June 27/19 at 10:00 am
This adjournment is granted for this reason although the Pls oppose the adj’t and quite properly wish to proceed.
[26] On June 21, 2019, Skurdelis swore a further affidavit seeking an adjournment of the June 27th date until such time as Mr. Adams and Mr. Andrews could agree on a return date which would allow Mr. Adams time to prepare and respond to the application. Skurdelis said that it was his understanding that the June 13th adjournment was to enable both lawyers to report to the court with an agreed timetable on June 27th. When Mr. Andrews advised Mr. Adams that the application would be argued on all issues on that date, Mr. Adams advised Skurdelis that he could not act and returned his retainer.
[27] On June 27th, the matter came back on before the Application Judge. Skurdelis again appeared in person. Mr. Adams was also present to ensure, as he said, there was no misunderstanding. He addressed the court briefly and explained that he was not retained. Skurdelis requested a further adjournment to retain a lawyer. He told the court that he had a right of first refusal under the Agreement and discussed his plan to pay out the Krizans’ half-interest as set out in his June 7th affidavit which the Krizans had rejected. He objected to the right of first refusal applying to the entire Property because it would trigger capital gains for him.
[28] Mr. Andrews conceded that there were accounting issues between the parties. He submitted that the Property should be sold, the mortgage paid off and the net proceeds paid into court to await a resolution of the accounting issues under the Agreement.
[29] Noting that the application had been in existence since February, the Application Judge advised the parties that he was going to order the Property to be sold, it would be sold and after discharge of the mortgage and any legal costs, the net proceeds would be held in trust pending further order of the court. He also directed that Skurdelis should have a right of first refusal. The matter was then stood down so that Mr. Andrews could amend his draft oprder to provide for the right of first refusal and Skurdelis could review the draft, as amended.
[30] Upon resuming, and following review of the draft as amended order, the Motion Judge endorsed the record:
Order to go that the property be listed for sale and sold. All parties will cooperate on the sale and the net proceeds shall be held in an interest-bearing trust account by the lawyer selected to sell the property, all of which is put to the draft order as amended attached hereto as Ex “A”.
Costs reserved to the Judge hearing the final motion.
Mr. Andrews does not require the consent of the Resp to take out and have issued the order.
Preliminary Matter
[31] At the outset of the hearing, the Krizans brought a motion pursuant to s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C43 to admit fresh evidence on the appeal concerning events since the date of the Order.
[32] The evidence sought to be admitted is contained in affidavits filed by each of Skurdelis and the Krizans in respect of Skurdelis’ earlier motion to stay the Order. The Krizans submit that it is relevant to whether Skurdelis has a first right of refusal under the Agreement which is an issue he has raised on the appeal. Skurdelis opposed the admission of the evidence on the ground that it did not meet the test for admission.
[33] Following argument on the motion, we reserved our decision and proceeded with the argument on the appeal.
[34] The test to admit fresh evidence on appeal is well settled. The Krizans must establish the evidence could not have been obtained by reasonable diligence in their application; is credible; and if admitted, would likely be conclusive of an issue on appeal: Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759 at p. 13; St Amand v. Tisi, 2018 ONCA 106 at para. 8.
[35] I agree with Skurdelis that the proposed evidence fails to meet the above requirements for admittance on the appeal. From the outset, the Agreement and its provisions were relevant to the proposed sale of the Property pursuant to the Act. One of those provisions is either party’s right of first refusal to purchase the other’s interest in the Property. The evidence concerning whether that provision was applicable was clearly something which could have and as will be seen shortly was addressed by the Krizans in their evidence.
[36] More importantly, I do not consider that the evidence, if admitted, would affect the result. Rather, its purpose is to support, not change the result.
[37] Accordingly, the proposed fresh evidence is not admissible and the Krizans’ motion is dismissed.
Standard of Review
[38] Section 7 of the Act provides that an appeal lies to this court from any order made under the Act.
[39] Skurdelis submits that the standard of review in an appeal involving “misapprehending, failing to appreciate, and disregarding evidence” is “reasonableness.” In support, he relies on a statement by Bastarache J., in dissent, at para. 255 in H.L. v. Canada (Attorney General), 2005 SCC 25.
[40] H.L. concerned Saskatchewan’s Court of Appeal Act, 2000, and the question of whether that legislation empowered Saskatchewan’s Court of Appeal to substitute its own findings of fact for those of the trial court. Bastarache J.’s view was that the Court of Appeal Act displaced the common law standards of review permitting the Court of Appeal to “rehear” cases where the factual findings of the trial judge were not based on the testimony of viva voce witnesses or other “special advantages”. The majority of the Court held, however, that the Saskatchewan Court of Appeal was required to apply the standards of review set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (SCC), just like other appellate courts.
[41] In my view, Bastarache J.’s comments have no bearing on the standard of review in this case. Apart from the fact they are in dissent, they also are made in respect of a very different legislative framework.
[42] The standard of review in respect of this appeal is as set out in Housen at para. 8: correctness in respect of a question of law; palpable and overriding error in respect of questions of fact and questions of mixed fact and law where the legal principle is not readily extricable.
The Issues
[43] As noted, the issues on the appeal are that the Application Judge erred:
In refusing to grant Skurdelis’ request for an adjournment;
In misapprehending, failing to appreciate or disregarding the evidence; and
In failing to provide adequate reasons for his decision.
Analysis
a) Adjournment
[44] The decision to grant an adjournment is discretionary: Bhimji Khimiji v. Dhanani (2004), 2004 12037 (ON CA), 69 O.R. (3d) 790 (C.A.) at para. 14. As noted by the Court of Appeal in Igbinosun v. Law Society of Upper Canada, 2009 ONCA 484, a number of procedural and substantive considerations are involved in deciding whether to grant an adjournment or not, including previous adjournments granted to the party seeking the adjournment, previous peremptory hearing dates and the desirability of having the matter decided.
[45] Skurdelis submits that the Application Judge’s refusal to grant him a “short” adjournment denied him the opportunity to retain counsel in order to properly respond to the application amounts to a breach of natural justice.
[46] The application which sought a court-controlled sale of the Property following the parties agreement to sell, had been before the court since February 19, 2019 and had been adjourned four times, twice peremptory to Skurdelis, prior to June 27, 2019. On both June 13 and 27, the Kirzans opposed Skurdelis’ requests for adjournment and sought to have the matter heard in order to have the Property sold.
[47] Based on Tranmer J.’s endorsement of June 13th, the Application Judge did not accept Skurdelis’ submission that it was not clear to him that the application was to proceed on June 27th. Further, Mr. Adams conceded that the endorsement of Tranmer J. appeared to make the matter returnable on June 27, 2019.
[48] From the outset of the application, Skurdelis had more than sufficient time to retain counsel. The adjournment on June 13th was granted by Tranmer J. to enable Skurdelis to retain Mr. Adams as indicated in his affidavit of June 7th. Mr. Adams was at least the third lawyer he had consulted. Tranmer J. adjourned the application to June 27th on the expectation that Mr. Adams would be retained and appear on that date. But Mr. Adams was not retained. Rather, Skurdelis sought a further “short” adjournment to retain a lawyer. Given the history, there was no guarantee that he would retain counsel in the interim or that the application would be resolved expeditiously.
[49] Further, notwithstanding he was present and addressed the court, Mr. Adams did not confirm that he would act, speak to the adjournment or offer any available dates that he would be available to argue the matter.
[50] Before us Skurdelis submits that he had a draft responding affidavit which he was given no opportunity to finalize and deliver but there is no indication of such affidavit in the Record nor did Skurdelis raise it before the Application Judge. Further, Skurdelis had already filed three affidavits in response to the application.
[51] Skurdelis further submits that he was not permitted to make “fulsome” submissions before the Application Judge. The transcript of the hearing belies that submission. Skurdelis was given ample opportunity to make submissions and in fact, was asked on two separate occasions if he had anything else to submit.
[52] Given that the issue before the court was simply to order the sale of the Property and set the terms of the sale, together with the history of the proceeding and Skurdelis’ open ended request for an adjournment, it is clear from the record that the Application Judge determined that Skurdelis had more than sufficient time to retain a lawyer and there was no prejudice to him in ordering the Property to be sold.
[53] In my view, the Application Judge did not err in refusing Skurdelis’ adjournment request and ordering the sale of the Property. There was no breach of natural justice.
b) Misapprehension, Failure to Appreciate or Disregarding Evidence
[54] Skurdelis submits that in ordering the sale of the Property pursuant to the Act, the Application Judge misapprehended, failed to appreciate or disregarded the evidence. He submits the Application Judge failed to take into account or give proper effect to the Agreement and specifically his right of first refusal to purchase the Kirzans’ interest in the Property.
[55] A tenant in common has a prima facie right to partition and sale under the Act. While s. 2 of the Act gives the court a discretion to decline to order partition or sale, such discretion can only be exercised in limited circumstances such as malice, oppression, vexatious intent or hardship amounting to oppression. See: Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2004), 2004 48652 (ON CA), 75 O.R. (3d) 478 (C.A.).
[56] In addition, partition or sale will not be ordered where to do so would conflict with an agreement between the parties concerning the Property in question. See: Shabinsky v. Cohen, [1983] O.J. No. 1096 (Div. Ct.); 997897 Ontario Inc. v. 926260 Ontario Ltd., [2001] O.J. No. 3960 (SCJ); Capannelli v. Muroff, [2000] O.J. No. 5040 (SCJ), aff’d [2002] O.J. No. 191 (C.A.).
[57] Skurdelis submits that the Order, providing for the sale of the Property, conflicts with his right under the Agreement to purchase the Krizans’ interest in the Property. I disagree.
[58] As noted, Skurdelis and the Krizans agreed to sell the Property. Specifically, paragraph 26 of Victor Kirzan’s March 26, 2019 affidavit states:
At the end of November 2018, Karen and I had succeeded in resuming communications with the Respondent, and we had all reached an agreement that 371 Brock Street would be sold. It was clear at this point that the relationship had broken down irreversibly and that we all simply needed to disentangle our finances.
[59] In his responding affidavits, as well as at his appearance at the initial return date on March 21, 2019 and up to June 27, 2019, neither Skurdelis nor his lawyers took issue with the Kirzans’ evidence that they had agreed to sell the Property. Skurdelis’ concern was the Krizans’ allegations in respect of his dealings with the Property and its revenue. The issue before the court from the outset was the terms upon which the Property would be listed and sold. It was not until his appearance before the Application Judge that Skurdelis raised the issue of the Agreement and his right of first refusal.
[60] Before us, Skurdelis submitted that the Agreement was only to list the Property for sale and not to sell it. But the evidence clearly contradicts that submission. The Property was to be sold and Skurdelis was responsible (at his request) for listing it. It was because of his failure to proceed with the listing that the Kirzans lost all confidence in Skurdelis, resulting in the application.
[61] The wording of the right of first refusal in s. G1) i) of the Agreement, on which Skurdelis relies, is clear. It arises only where one party wishes to divest itself of its interest in the Property. That is not the case here. In this case, the parties agreed to sell the Property. Accordingly s. G1)i) does not apply.
[62] Further, it is clear from the transcript that the Application Judge was aware of and considered the Agreement and the submissions of both Skurdelis and the Krizans in respect of its terms. Skurdelis submitted he was entitled to purchase the Krizans’ interest under the Agreement and that the provisions of s. G 1) i) of the Agreement applied. The Krizans submitted that the distribution of the proceeds of sale was governed by s. F. The Application Judge disagreed with Skrudelis’ interpretation of his right to purchase as set out in his offer to settle of May 20, 2019. He recognised however, as submitted by the Krizans, that the allocation of the net proceeds of sale was a matter to be resolved at a future date and accordingly provided that they be held in trust following the sale. Nothing in the Order, in my view, conflicts with the provisions of the Agreement.
[63] Skurdelis submits that para. 8 of the Order providing him a right of first refusal to purchase the Property is incorrect for a number of reasons, including that it disregards his right of first refusal under the Agreement and ignores both the fact that an accounting must first occur under the Agreement and Skurdelis’ majority equity interest in the Property.
[64] As discussed, Skurdelis has no right of first refusal under the Agreement. Nor is an accounting necessary before the sale. The Application Judge was attuned to the fact that an accounting under the Agreement must occur. The Krizans sought an accounting from the outset. It was clearly understood by both parties that it would follow the sale and the net proceeds of sale would be held in trust to permit such accounting.
[65] Paragraph 8 of the Order does contain one error. The last sentence provides that the net proceeds of sale from Skurdelis’ exercise of the right of first refusal should be paid to the Krizans. That provision is inconsistent with para. 20 of the Order which provides that the net proceeds of a third-party sale should be held in an interest-bearing trust account. Paying the net proceeds to the Krizans also does not reflect the requirement for an accounting between the parties.
[66] Skurdelis further submits that the Application Judge erred in requiring him to purchase the Property for the full purchase price rather than allowing him to exercise his right to purchase the Krizans’ interest in the Property pursuant to the Agreement. As the Application Judge pointed out, however, how the right of first refusal in para. 8 of the Order applies is a matter of interpretation if and when it is exercised.
[67] Skurdelis submits that he will suffer “irreparable harm” if the appeal is not granted in that he will lose his right to purchase the Krizans’ interest in the Property as provided in the Agreement. As discussed, in light of their agreement to sell, Skurdelis has no right to purchase the Krizans’ interest under the Agreement. The Order, however, does give him a right of first refusal.
[68] Nor does Skurdelis’ submission that based on the Order, he will be subject to capital gains tax, amount to irreparable harm. That obligation arose back in November 2018 when he agreed to sell the Property, not as a result of the Order.
[69] For the above reasons, therefore, I am satisfied the Application Judge did not misapprehend, fail to appreciate or disregard the evidence in granting the Order.
c) Adequacy of Reasons
[70] Reasons must be sufficient to both enable the losing party to understand why they have lost and permit meaningful appellate review of the decision. In considering whether reasons have fulfilled that function, the reviewing court should read the reasons as a whole, “in the context of the evidence, arguments and the trial, with an appreciation of the purposes or functions for which they are delivered”: R. v. M. (R.E.), 2008 SCC 5 at paras. 15-17.
[71] While the Application Judge’s endorsement providing for the sale of the Property is brief, based on the issues before him and the transcript of the proceedings on June 27, 2019, I am satisfied that Skurdelis understood the basis upon which the Application Judge both denied his adjournment request and ordered the sale of the Property. I am also of the view that the record is sufficient to permit meaningful appellate review.
[72] As noted, it is clear from the submissions of the parties and the lengthy exchanges between Skurdelis and the Application Judge on June 27, 2019 that the Application Judge considered that more than enough time had elapsed for Skurdelis to retain counsel. Further, he considered that any accounting issues between the parties under the Agreement could be sorted out at a later date.
[73] Further, although the Application Judge did not accept Skurdelis’ interpretation of his right of first refusal under the Agreement, he granted him such right as part of the terms of the sale. While Skurdelis questioned how such right would operate, the Application Judge told him, quite properly, to obtain legal advice.
Conclusion
[74] For the above reasons, therefore, the appeal is allowed but only in respect of correcting the error in para. 8 of the Order by deleting the last sentence thereof and providing that the Net Proceeds be held in an agreed interest-bearing trust account.
[75] Otherwise, the appeal is dismissed.
[76] Apart from the amendment to para. 8 of the Order, the Krizans are successful on the appeal and are entitled to their costs on a partial indemnity basis. On the other hand, Skurdelis was successful on the Krizans’ fresh evidence motion and is entitled to costs in respect of it.
[77] The parties have agreed that costs of the appeal, including the Krizans’ motion, total $9,000. In my view, those costs are reasonable. They disagree, however, on the allocation of those costs. The Krizans submit the agreed costs should be split $1,000 for the motion and $8,000 for the appeal. Skurdelis submits the split should be 50/50 or $4,500 for each of the motion and the appeal.
[78] The appeal was much more involved and time consuming both in preparation and argument such that I do not consider a 50/50 split to be appropriate. Nor do I consider $1,000 to be reasonable costs for the motion.
[79] In my view, the appropriate allocation of the agreed amount of costs given the issues and argument is $7,000 to the Krizans for the appeal and $2,000 to Skurdelis for the motion. Accordingly, the Krizans are entitled to costs on the appeal of $5,000 in total payable by Skurdelis forthwith.
L. A. Pattillo J.
I agree _______________________________
T. R. Lederer J.
I agree _______________________________
F. Kristjanson J.
Released: July 22, 2020
CITATION: Krizans v. Skurdelis, 2020 ONSC 4386
DIVISIONAL COURT FILE NO.: 271-19
DATE: 20200722
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PATTILLO, LEDERER AND KRISTRJANSON JJ.
BETWEEN:
VICTOR KRIZAN and KAREN KRIZAN
Applicants/Respondents in Appeal
– and –
DAVID JOHN THOMAS SKURDELIS
Respondent (Appellant)
REASONS FOR JUDGMENT
Released: July 22, 2020