



COURT OF APPEAL FOR ONTARIO

CITATION:
    31 Kingsbury Inc. v. Delta Elevator Company Limited,

2021
    ONCA 656

DATE: 20210922

DOCKET:
    C67165

Simmons,
    Pepall and Trotter JJ.A.

BETWEEN

31 Kingsbury Inc.

Plaintiff
    (Appellant)

and

Delta Elevator Company Limited

Defendant
    (Respondent)

James M. Wortzman, for the appellant

Charles M. Gastle and Heather M.
    Gastle, for the respondent

On appeal from the judgment of Justice
    Mario Faieta of the Superior Court of Justice, dated June 10, 2019, with
    reasons reported at 2019 ONSC 3619, 99 C.L.R. (4th) 360.

COSTS ENDORSEMENT

[1]

The appellant abandoned this appeal on the eve
    of the appeal hearing date by notice of abandonment dated February 5, 2020. The
    respondent seeks costs of the appeal on a substantial indemnity basis in the
    amount of $22,926.38, or, in the alternative, partial indemnity costs of
    $15,713.48. The appeal related to a judgment enforcing a settlement agreement
    that required the appellant to pay the respondent $88,558.10, which was the
    balance owing for elevators installed in September 2017. The respondent
    points to the appellants actions in creating as much delay as possible to
    support its claim for substantial indemnity costs.

[2]

The appellant submits this court does not have
    jurisdiction to make a costs award because r. 61.14(3) provides that where an
    appeal is abandoned (or deemed abandoned) the appeal is at an end. The
    appellant asserts costs should be assessed as permitted under r. 58.07 by
    filing the notice of abandonment with the office of the assessment officer. In
    the alternative, the appellant submits that, given the amount in dispute and
    the quantum of its costs, a just and proportionate award would be 50 percent of
    the partial indemnity costs the respondent claims.

[3]

We are satisfied we have jurisdiction to award
    costs of an abandoned appeal. Although r. 61.14(3) stipulates that an appeal is
    at an end once abandoned (or deemed abandoned), nothing in r. 61.14(3)
    displaces this courts discretion under s. 131 of the
Courts of Justice Act
,
    R.S.O. 1990, c. C43 to award and fix costs. On the contrary, r. 61.14(3) and r.
    61.14(4) demonstrate this courts continuing jurisdiction in relation to the costs
    of an abandoned appeal. Rule 61.14(3) stipulates that, subject to subrule
    (4), where an appeal is an abandoned, the respondent is entitled to the costs
    of the appeal. Rule 61.14(4) provides that the abandonment of an appeal shall
    be without costs if the respondent did not file a response to the appeal unless
    a judge of the appellate court orders otherwise. Rule 58.07, on which the
    appellant relies, does no more than permit an assessment officer to assess
    costs where they have not been fixed by the court.

[4]

Although we are not satisfied the circumstances
    of this case justify an award of substantial indemnity costs, the circumstances
    do support an award of partial indemnity costs that will compensate the
    respondent appropriately for the work done to prepare for the appeal. Costs of
    the appeal are to the respondent on a partial indemnity scale fixed in the
    amount of $15,000 inclusive of disbursements and applicable taxes.

Janet
    Simmons J.A.

S.E.
    Pepall J.A.

Gary
    Trotter J.A.


