ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-50312 and 12-56265
BETWEEN:
Mildred McMurtry
Mark W. Smith, for the Plaintiff, Mildred McMurtry
Plaintiff
-and-
John McMurtry and Mic Mac Realty (Ottawa) Limited
Defendants
AND BETWEEN:
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John McMurtry
Plaintiff
-and-
Jim McMurtry
Jeff G. Saikaley, Richard Léger, for the Plaintiff and Defendants by Counterclaim, John McMurtry, Brenda McMurtry and Mic Mac Realty (Ottawa) Limited
Jeff G.Saikaley, Richard Léger for the Plaintiff and Defendants by Counterclaim
Daniel Mayo, for the Defendant and Plaintiff by Counterclaim, Jim McMurty
Defendant
AND BETWEEN:
Jim McMurtry
Plaintiff by Counterclaim
-and-
John McMurtry, Brenda McMurtry, Barry Coons, Mic Mac Realty (Ottawa) Limited, Bouris Wilson LLP
Defendants by Counterclaim
HEARD: November 21, 2013
Daniel Mayo, for the Defendant and Plaintiff by Counterclaim, Jim McMurty
Jeff G. Saikaley, Richard Léger for the Plaintiff and Defendants by Couterclaim, John McMurtry
Christopher Hluchan, for the Defendants by Counterclaim, Barry Coons and Bouris Wilson LLP
decision on costs and directions re order for tax payments
Maranger J.
[1] The matter involved three motions: a motion for the release of funds being held in a trust account from a real estate transaction; a motion for a summary judgment against Mildred McMurtry; and a motion for the appointment of an interim receiver/manager brought for all intents and purposes against John McMurtry.
[2] I find that success on the motion for the release of funds from the trust account was divided, and I make a no cost order in regard to that motion.
[3] The summary judgment motion and motion the appointment of an interim receiver/manager were both dismissed. The success for each party resisting these motions was unequivocal.
[4] In each of those motions I would award costs fixed in the all-inclusive sum of $15,000 to be paid by the moving parties forth with. In arriving at the sum of $15,000 I have taken the following factors into consideration:
• The Ontario Court of Appeal decision of Boucher v. Public Accountants Council for the Province of Ontario et al. 2004 14579 (ON CA), 2004, 71 O.R. (3d) 291 at p. 299 where the Court indicated as follows:
Overall as this Court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding rather than an amount fixed by the actual costs incurred by the successful litigant.
• Rule 57.01 of the Rules of Civil Procedure particularly: (o.b),(a),(c) and (d).
• The amount of time expended in relationship to each motion, and the bill of costs filed by each party.
[5] Therefore, John McMurtry is ordered to pay the Mildred McMurtry costs fixed in the amount of $15,000 and Jim McMurtry is ordered to pay John McMurtry costs fixed in the amount of $15,000.
[6] Finally, directions were requested regarding payments that John and Brenda McMurtry have made on the arrears of municipal taxes following the bringing of the motion but prior to the decision on the issue of the release of funds from monies held in trust.
[7] Their motion outlined the exact amount of taxes owing and asked that an order be made for that amount to be paid out of the trust fund to extinguish those arrears.
[8] Consequently, any money paid by John and Brenda McMurtry towards those specified municipal tax arrears is to be reimbursed from the monies held in trust.
Maranger J.
Released: February 12, 2014
BETWEEN:
Mildred McMurtry
Plaintiff
-and-
John McMurtry and Mic Mac Realty (Ottawa) Limited
Defendants
AND BETWEEN:
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John McMurtry
Plaintiff
-and-
Jim McMurtry
Defendant
AND BETWEEN:
Jim McMurtry
Plaintiff by Counterclaim
-and-
John McMurtry, Brenda McMurtry, Barry Coons, Mic Mac Realty (Ottawa) Limited, Bouris Wilson LLP
Defendants by Counterclaim
DECISION ON COSTS AND DIRECTIONS RE ORDER FOR TAX PAYMENTS
Maranger J.
Released: February 12, 2014