



COURT OF APPEAL FOR ONTARIO

CITATION: Walchuk v. Houghton, 2016 ONCA 839

DATE: 20161108

DOCKET: C60317

Feldman, Simmons and
    Lauwers JJ.A.

BETWEEN

Mary Walchuk,

Estate trustee for Walter
    Walchuk, deceased

Plaintiff (Respondent in Appeal)

and

Walter Houghton also
    known as Wilfred Houghton

also known as Wilfred
    W. Houghton

also known as Wilfred
    P. Houghton

Defendant

(Appellant)

Michael Jaeger, for the appellant

Andrew Sheremeta, for the respondent

Heard: August 22, 2016

On appeal from the judgment of
    Justice R. John Harper of the Superior Court of Justice, dated March 9, 2015
    with reasons reported at 2015 ONSC 1291.

COSTS ENDORSEMENT

[1]

For the reasons reported at 2016 ONCA 643, this court allowed the appeal
    by the defendant from a procedural ruling by Harper J. , with reasons reported
    at 2015 ONSC 1291, regarding a contempt motion brought by the plaintiff,
    Walchuk. This court ruled the defendants failure to bring documents ordered by
    the motion judge to be brought to the examination could not support a finding
    of contempt, because an examination in aid of execution was a proceeding
    intended to be stayed by operation of s. 69.3 of the
Bankruptcy and
    Insolvency Act
, R.S.C. 1985, c. B-3. This court ordered $11,500 to the
    appellant which, as a result of previous costs orders, netted to the amount of
    $10,000, all-inclusive to be paid by the respondent to the appellant.

[2]

However, the parties neglected to address the court on the costs of the
    proceeding before the motion judge. The appellant asks the court to deal with
    those, even though the motion judge has not yet made a costs award. The usual,
    though not invariable, practice in this court is to reverse the costs order in
    the court whose decision was successfully appealed.

[3]

The appellant seeks costs in the amount of $20,000 all-inclusive against
    a full indemnity bill including taxes and disbursements totalling about
    $28,000, all related to post-bankruptcy litigation. The appellant also states
    that in June, 2016, he offered to settle all costs below at $35,000 but the
    respondent did not accept the offer.

[4]

We do not agree with the respondent that the motion judge should be
    requested to set costs, since this would only add time and expense. The
    respondent argues that the appellant should not receive any costs, but if costs
    are awarded in relation to the contempt motion, then it should certainly be a
    lot less than the $10,000 he has already been awarded in costs for the entire
    appeal proceeding.

[5]

There is no reason that costs should not follow the event, as in the
    normal course. Given the comparative reasonable time requirements of the
    original motion and the appeal, we set costs of the motion before Harper J. at
    $15,000 all-inclusive, payable by the respondent to the appellant.

K. Feldman
    J.A.

Janet
    Simmons J.A.

P. Lauwers
    J.A. 


