



COURT OF APPEAL FOR ONTARIO

CITATION: Thrive Capital Management Ltd. v.
    Noble 1324
Queen Inc., 2021 ONCA 846

DATE: 20211124

DOCKET: C69156

Strathy C.J.O., Pepall and Pardu
    JJ.A.

BETWEEN

Thrive
    Capital Management Ltd., Thrive Uplands Ltd.,
2699010 Ontario Inc. and 269901 Ontario Inc.

Plaintiffs (Respondent)

and

Noble 1324 Queen Inc., Michael
    Hyman Giuseppe Anastasio, David Bowen, Noble Developments Corporation,
    Hampshire and Associates Incorporated, Lisa Susan Anastasio, Rajeree Etwaroo
    and Con-Strada Construction Group Inc.

Defendants (Appellants)

Justin Necpal, Justin H. Nasseri and
    Joshua Ng, for the appellants

Brian N. Radnoff and Joshua Suttner,
    for the respondents

Heard: September 15, 2021 by video conference

On appeal from the judgment of Justice Markus Koehnen of the Superior
    Court of Justice, dated January 21, 2021.

COSTS
    ENDORSEMENT

[1]

The issues of costs awarded by the motion judge
    and the costs of the appeal remain. The motion judge awarded the plaintiffs
    costs of $36,011.97 for the costs of the hearing to determine whether the
    defendants were in contempt, $48,816.31 for the costs of the hearing to
    determine the sanction to be applied for contempt, and as he granted judgment
    to the plaintiffs, $109,142.80 for the costs of the action. The finding of
    contempt was not contested; however, the sanction  judgment in the action  was
    set aside and the matter was remitted to the Superior Court for determination
    of the sanctions to be imposed for contempt, or other issues that might be
    raised together with that issue.

[2]

Since the finding of contempt was not
    challenged, we see no basis to intervene in that award. Given the conduct of
    the defendants, and the difficulty in persuading them to disclose their assets,
    those costs in the sum of $36,011.97 should be paid from the $70,000 that the
    defendants were ordered to post as security for costs of the appeal and of the
    proceedings.

[3]

The defendants were successful in setting aside
    the sanction ordered because there were procedural flaws in the process
    followed to determine the appropriate sanction. Their contemptuous conduct,
    however, is the root cause of the proceedings that followed. Under those
    circumstances, we set aside the costs awards of $48,816.31 for the sanctions
    hearing, and the costs of the action in the sum of $109,142.80 and order no
    costs for those steps in the proceeding at this time. For the same reason, we
    would order no costs on the appeal.

[4]

As it seems likely that these proceedings will
    continue, and some form of sanction for contempt will be imposed against the
    defendants, the remaining funds held in court as security for the appeal and
    the proceedings below will continue to be held in court, to be applied to any
    future costs award in favor of the plaintiffs.


G.R. Strathy C.J.O.


S.E.
    Pepall J.A.

G.
    Pardu J.A.


