



COURT OF APPEAL FOR ONTARIO

CITATION:
Remo Valente Real Estate (1990)
    Limited v. Portofino Riverside Tower Inc., 2012 ONCA 51

DATE: 20120126

DOCKET: C53256

Doherty, Goudge and Epstein JJ.A.

BETWEEN

Remo Valente Real Estate (1990) Limited

Plaintiff (Appellant)

and

Portofino Riverside Tower Inc., Westview Park
    Gardens (2004) Inc., Portofino Corporation and Dante J. Capaldi

Defendants (Respondents)

Gino Morga and Michelle D. Reynolds, for the appellant

William V. Sasso and Jacqueline A. Horvat, for the
    respondents

Heard: October 24, 2011

On appeal from the order of the Divisional Court (Hambly,
    Murray and Ray J.J.) dated February 24, 2010, with reasons by Hambly and Ray
    J.J. reported at 2010 ONSC 280, 68 B.L.R. (4th) 66.

COSTS
    ENDORSEMENT

[1]

The parties have provided us with detailed costs submissions
    which we have now reviewed carefully.

[2]

The history of these proceedings is a tangled one, to say the
    least.

[3]

The primary issue litigated in the lengthy trial and the appeal
    from it to the Divisional Court, was the oppression claim.  We have concluded
    that the Divisional Court was correct in deciding that it fails.

[4]

However, as we explained in our decision, the trial and the
    appeal to the Divisional Court left unresolved another significant issue
    concerning breach of contract.  We have directed that this be determined in a
    new trial.

[5]

There is no doubt that the costs to date have been largely
    incurred to address the oppression issue.  As we have indicated, however, this
    was not the only issue between the parties.  A fair costs award cannot be made
    as if it were.  Had the unresolved issue been litigated at trial, that could
    well have determined the appropriate costs order for the entire proceedings,
    including the oppression issue.

[6]

In our view, responsibility for failure to litigate the contract
    issue is divided.  The appellant pursued the oppression remedy single-mindedly
    at trial and in the Divisional Court.  However, in this court it also raised
    the contract issue, and once the respondents made clear the shared contractual
    responsibility of the three corporate respondents, a new trial was obviously
    needed if all issues between the parties were to be resolved.  We allowed the
    appeal, and so ordered.  In that sense, although it lost the oppression issue,
    the appellant succeeded on the appeal.

[7]

In applying the usual loser pays basis for costs, we have
    considered whether to attempt to allocate responsibility for the history of and
    current state of this litigation.  In a broad sense, while the appellant might
    be assigned more responsibility for the costs devoted to the oppression claim,
    the reverse might be said for the contract issue remaining still unresolved. 
    Put another way, while the respondent could be said to have succeeded on the
    oppression issue, the appellant could be said to have succeeded on the appeal.

[8]

Any attempt in these circumstances to fine tune relative degrees
    of responsibility would necessarily be arbitrary in our view.

[9]

We conclude that the fair costs award in these unusual
    circumstances is that each side bear its own costs throughout.  We therefore
    order no costs here or below.  Costs of the new trial will of course be for the
    trial judge.

Doherty J.A.

S.T. Goudge J.A.

G.J. Epstein J.A.


