Court File and Parties

Court File No.: CV-17-11812-00CL Date: 2019-06-26 Superior Court of Justice - Ontario

Re: Anthony Zanardo in his capacity as the Estate Trustee for the Estate of Luigi Gambin, Applicant (Respondent in Appeal) And: Di Battista Gambin Developments Limited, Ray Di Battista, Anthony Di Battista, Julia Babensky, Whitwood Developments Ltd. and Greystar Developments Inc., Respondents (Appellants)

Before: Dietrich J.

Counsel: Christopher Trivisonno, for the Applicant (Respondent in Appeal) Sheila R. Block and Jonathan Silver, for the Respondents (Appellants) Edmond F.B. Lamek, for Zeifman Partners Inc. in its capacity as Monitor for the Respondent Di Battista Gambin Developments Limited

Heard: In writing

Endorsement on costs

[1] The Applicant brought an application seeking a remedy for oppression. The court found oppressive conduct by the Respondents and ordered a winding-up of Di Battista Gambin Developments Limited (“DBG”) on terms, including the appointment of a monitor. The Respondents appealed the winding-up order. While their appeal was pending, the court-appointed monitor brought a motion before me for directions seeking the court’s advice on whether the payment of the Respondents’ legal fees incurred in pursuing their appeal of the winding-up order should be paid by DBG.

[2] On March 29, 2019, I issued my Reasons for Decision and directed that the monitor not make any payment from DBG for legal fees incurred by the Respondents on account of their appeal unless the court ordered such payment or such payment was otherwise agreed to by the parties.

[3] I also found that the Applicant was entitled to have his costs of that motion paid by the Respondents.

[4] I invited the parties to agree on costs failing which they could make written submissions. I have received written submissions from the Applicant, but have not received written submissions from the Respondents, whose submissions were due by May 6, 2019.

[5] Having received no submissions from the Respondents, and having reviewed the submissions from the Applicant, I award the Applicant costs of $4,500 inclusive, as sought by him, on a partial indemnity basis. This amount shall be payable by the personal Respondents Ray Di Battista, Anthony Di Battista and Julia Babensky on a joint and several basis.

[6] It is appropriate that the costs be paid by the personal Respondents and not by DBG. Otherwise, the Applicant would be funding one-half of the costs awarded to him through his 50% interest in DBG.

[7] The Divisional Court arrived at the same result in its costs reasons on the appeal itself, ordering that the Applicant’s legal costs be paid by the personal Respondents only.

[8] An award against the personal Respondents is appropriate in that it was their conduct that necessitated the motion before me. Without prior court approval or direction, they used funds from DBG to fund their appeal in breach of the stay order of Justice Myers dated August 16, 2018, which authorized the payment by DBG of “ordinary course” expenses only pending the appeal. When the Applicant objected to the payment by DBG of the Respondents’ legal fees, the Respondents refused to return the funds to DBG thus necessitating the intervention of the monitor and the Applicant.

[9] Having reviewed the Applicant’s Costs Outline, and having taken into account the relevant factors set out in rule 57.01(1) of the Rules of Civil Procedure and Boucher v. Public Accountants Council for the Province Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), I am satisfied that a costs award of $4,500, inclusive is fair and appropriate in this case.

Dietrich J.

Date: June 26, 2019