



COURT OF APPEAL FOR ONTARIO

CITATION: Tracy v. Iran (Information and Security), 2017 ONCA
    777

DATE: 20171011

DOCKET: C62403, C62404, C62405, C62406 and C62407

Hoy A.C.J.O., Blair and Hourigan JJ.A.

BETWEEN

Edward
    Tracy, by his Litigation Guardian, Charles Murphy, Elizabeth Cicippio-Puleo,
    Estate of Helen Fazio, Estate of Domenic Cicippio, David B. Cicippio, Eric R.
    Cicippio, Richard Dennis Cicippio, Thomas J. Cicippio, Estate of Paul V.
    Cicippio, Allen John Cicippio, Estate of Rose Abell, Anthony Cicippio, Estate
    of Alexander Cicippio, Nicholas B. Cicippio and Estate of Joseph J. Cicippio Jr.

Applicants (Respondents)

and

The Iranian Ministry of Information and
    Security, The Islamic Republic of Iran
and
The
    Iranian Revolutionary Guard Corp.

Respondents (Appellants)

AND BETWEEN

Estate of Marla Bennett, Michael Bennett,

Linda
    Bennett and Lisa Bennett

Plaintiffs
    (Respondents)

and

The Iranian Ministry of Information and Security

and
    the Islamic Republic of Iran

AND BETWEEN

Chad Phillip
    Holland

Plaintiff
    (Respondent)

and

The Islamic Republic of Iran,

the Iranian Ministry of Information and Security

and
    the Iranian Revolutionary Guard Corps

Defendants
    (Appellants)

AND BETWEEN

American Center for Civil Justice, Inc., as Assignee

For
    Christine Higgins

Plaintiff
    (Respondent)

and

The Iranian
    Revolutionary Guard Corps

Defendant
    (Appellant)

AND BETWEEN

Katie L. Marthaler, Herman C. Marthaler, III,

Matthew
    Marthaler, Kirk Marthaler, Richard W. Wood, Kathleen

M.
    Wood, Shawn M. Wood, Francis Heiser, Denise M. Eichstaedt, Anthony W.

Cartrette, Lewis W. Cartrette, Thaddeus C. Fennig,
    Catherine Fennig, Paul D. Fennig, Mark Fennig, Catherine Adams, Mary Young,
    Daniel Adams, Elizabeth Wolf, Patrick D. Adams, John E. Adams, William Adams,
    Michael T. Adams, Christopher R. Nguyen, Bridget Brooks, James R. Rimkus, Anne
    M. Rimkus, Steve K. Kitson, Nancy A. Kitson, Lawrence E. Taylor, Vickie L.
    Taylor, Starlina D. Taylor, Dawn Woody, Bernadine R. Beekman, Tracy M. Smith,
    Jonica L. Woody, Timothy Woody, Ibis S. Haun, Senator Haun, Milagritos
    Perez-Dalis, Cecil H. Lester, Sr., Judy Lester, Cecil H. Lester, Jr., Jessica
    F. Lester, Shyrl L. Johnson, Kevin Johnson, Jr., Nicholas A. Johnson, A Minor,
    By His Legal Guardian Shyrl L. Johnson, Michael Morgera, Thomas Morgera, Marie
    R. Campbell, Bessie A. Campbell, James V. Wetmore, George M. Beekman, Che G.
    Colson, Bruce Johnson, Estate Of Brent E. Marthaler, Estate Of Sharon
    Marthaler, Estate Of Michael Heiser, Estate Of Gary Heiser, Estate Of Patrick
    P. Fennig, Estate Of Christopher Adams, Estate Of Thanh Van Nguyen, Estate Of
    Sandra M. Wetmore, Estate Of Kendall Kitson, Jr., Estate Of Kendall K. Kitson,
    Sr., Estate Of Nancy R. Kitson, Estate Of Joshua E. Woody, Estate Of Leland
    Timothy Haun, Estate Of Christopher Lester, Estate Of Kevin J. Johnson, Sr.,
    Estate Of Millard D. Campbell, Estate Of Peter J. Morgera, Estate Of Justin R.
    Wood, Estate Of Earl F. Cartrette, Jr., Estate Of Brian Mcveigh, Estate Of
    Joseph E. Rimkus, Estate Of Jeremy A. Taylor, Estate Of Laura E. Johnson, Paul
    Alexander Blais, Estate Of Curtis Taylor, Maria Taylor, Cielito Valencia, Luz
    Southard, Steven Wolfe, Sonya Turner Broadway, Estate Of Betty Welch, Gerard
    Welch, Michael Welch, Richard Paul Brewer, Joyce Louise Leydet, Diana
    Campuzano, Avi Elishis, Gregg Salzman, Donna Marie Holland, James Robert
    Holland, Elisa Nili Cirilo Peres Ben-Rafael, Yonatan Mishael Benrafael, A Minor
    By His Litigation Guardian Elisa Nili Cirilo Peres Ben-Rafael, Ralph Goldman,
    Noa Ruth Ben-Rafael, Judith Goldman Baumgold And Naomi Goldman

Plaintiffs
    (Respondents)

and

The Islamic Republic of Iran, the Iranian Ministry of
    Information and Security,

And the Iranian Revolutionary Guard Corps

Defendants
    (Appellants)

Colin Stevenson and J. Daniel McConville for the
    appellants

John Adair and Gordon McGuire for the respondents, Tracy
    and Bennett

John B. Laskin, Sarah Whitmore, Eliot Che for the
    respondents, Marthaler, Holland and American Center for Civil Justice, Inc.

Jacqueline Dais-Visca, and Joseph Cheng for the
    intervener, the Attorney General of Canada

Heard: April 18, 2017

On appeal from the orders of Justice Glenn A. Hainey of
    the Superior Court of Justice, dated June 9, 2016, with reasons reported at
    2016 ONSC 3759, 400 D.L.R. (4th) 670.

COSTS ENDORSEMENT

[1]

In our decision dated June 30, 2017, we dismissed the appeals in their
    entirety, save for the appeals in the actions commenced by the respondents
    Welch, Brewer and Holland. Those appeals were allowed and the actions were
    struck.

[2]

We have now received the parties costs submissions. We would not give
    effect to Irans submission that no costs should be awarded because the issues
    on appeal were novel. They were not. Iran raised numerous grounds of appeal and
    there was jurisprudence on most of the issues raised.

[3]

We are also not satisfied that the respondents are entitled to costs on
    a substantial indemnity basis or that the respondents Welch, Brewer and Holland
    should receive costs even though their actions were dismissed. In our view,
    there should be a reduction to the costs sought in the bill of costs filed by
    the lawyers representing those respondents to reflect the mixed success on
    those appeals.

[4]

We order the appellants to pay costs on a partial indemnity scale to the
    respondents represented by Adair Barristers LLP in the amount of $70,000 and to
    the respondents represented by Torys LLP in the amount of $80,000. Both amounts
    are inclusive of fees, disbursements and applicable H.S.T.

Alexandra
    Hoy A.C.J.O.

R.A. Blair
    J.A.

C.W.
    Hourigan J.A.


