Court File and Parties

COURT FILE NOS.: CV-22-00682603-00CL CV-21-00667401-00CL DATE: 20230509 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARIA MARSILI, as the Estate Trustee for the estate of SILVIO MARSILI, Applicant AND: 438056 ONTARIO LIMITED and CESIDIO COPPOLA also known as JESSE COPPOLA, Respondents

AND RE: CESIDIO COPPOLA and 438056 ONTARIO LIMITED, Applicants AND: THE ESTATE OF SILVIO MARSILI, Respondent

BEFORE: Justice Cavanagh

COUNSEL: Christopher Lee and Wendy Ngai, for the Maria Marsili as Estate Trustee for the Estate of Silvio Marsili Kevin Sherkin and Eric Sherkin for Cesidio Coppola and 438056 Ontario Limited

HEARD: In Writing

Costs Endorsement

[1] On October 28, 2022, I released an endorsement on two applications in which the principal issues were in relation to the valuation of shares held by the estate of the late Silvio Marsili (the “Estate”) in 438506 Ontario Limited.

[2] Each side had retained an expert valuator and reports were exchanged. I decided a number of contentious issues. I directed the parties to have the valuation experts prepare revised valuation opinions using the methodologies in their reports but incorporating the findings made in my reasons. Updated expert reports were provided. The parties were able to resolve the remaining issues and, as a result, a consent order was issued dated April 13, 2023 providing for the sale of shares of 438056 Ontario Limited at an agreed upon price.

[3] In addition to the issues in relation to the valuation of the shares, the Estate made application for an order under the Partition Act directing that a property at 300 Borthwick Drive be sold and that the proceeds of sale be distributed equally between the opposing parties.

[4] The parties were unable to resolve the issues in relation to costs of the applications. They made written submissions.

[5] The Estate seeks an order requiring Cesidio Coppola and 438056 Ontario Limited (together, the “Coppola Parties”) to pay the Estate’s partial indemnity costs in the amount of $253,024.51 inclusive of disbursements (which are mainly expert fees) plus HST. Alternatively, the Estate seeks its partial indemnity costs of $59,133.48 plus HST for steps in this proceeding related to documentary production which, the Estate contends, were necessitated by the Coppola Parties’ refusal to provide corporate documents and information required by the Estate’s valuator to complete its valuation.

[6] The Coppola Parties submit that this is a clear case of divided success as between the two parties and that no costs should be awarded.

[7] In reply, the Estate submits that it sought and obtained a judgment for the vast majority of the relief claimed on its application including (i) an order requiring Cesidio Coppola to purchase the Estate’s shares at fair market value, (ii) the eventual production of corporate records and documents after several court interventions, and (iii) relief under the Partition Act for the sale of the 300 Bradwick Drive property. The Estate submits that given this outcome, there was not divided success.

[8] I first address the applications to determine the fair market value of the shares.

[9] As I observed in my endorsement, the essential dispute on both applications is the valuation of the shares held by the Estate. With respect to the valuation issues, some were resolved in favour of the Estate and some were resolved in favour of the Coppola Parties. There was divided success on the applications to determine the fair market value of the shares.

[10] In my view, neither the Estate nor the Coppola Parties should be regarded as the successful party in respect of the applications for determination of the fair market value of the shares.

[11] I now address the Estate’s claim for costs based on its submission that the Coppola Parties were unwilling to provide relevant documents and forced the Estate to move for production of additional documents thereby increasing its costs.

[12] As I noted in my endorsement at para. 11, after receiving the initial report from the valuator retained by the Coppola Parties, the Estate requested documents and information and documents were provided, although not all requested documents were provided. There were further communications in this respect. The Estate moved for additional documentary production and other relief in respect of documents. A case conference was held before Penny J. on December 14, 2021. Other case conferences were scheduled. A motion was brought that was resolved. The endorsement on this motion released by Gilmore J. on March 17, 2022 confirmed that all production issues were resolved.

[13] On the hearing of the applications before me, the Estate did not seek production of additional documents. The submissions were made on the evidentiary record before me, although the Estate argued that certain issues should be resolved in its favour given the failure of the Coppola Parties to provide additional documents.

[14] I did not make any findings that would justify an order as to costs against the Coppola Parties for failing to produce relevant documents. No other judge made such findings. No costs of any case conferences or other motions dealing with document requests were ordered by another judge.

[15] In the absence of any such findings or any order for costs of a motions or case conference in respect of documentary production, I decline to order costs of the applications against the Coppola Parties for failure to produce relevant documents.

[16] No party is entitled to costs of the applications for determination of the fair market value of the shares.

[17] I now turn to the Estate’s application for relief in relation to the Bradwick Drive property.

[18] As a discrete part of its application, the Estate sought relief in relation to the Bradwick Drive property, including an order under the Partition Act for sale of this property and distribution of the net proceeds of sale equally. In the Estate’s factum, this issue is addressed separately in paragraphs 89-95. In the factum of the Coppola Parties, this issue is not addressed. At the hearing of the applications, the Coppola Parties did not oppose the claim under the Partition Act, although they did not consent to the relief sought. As a result, I granted the relief under the Partition Act requested by the Estate.

[19] The Estate was successful in its separate claim for relief under the Partition Act and it is entitled to costs of the application for this relief. Having regard to the factors in rule 57.01 of the Rules of Civil Procedure, I fix costs of the application for this relief in the amount of $7,500 to be paid by the Coppola Parties to the Estate.

Cavanagh J. Date: May 9, 2023