



COURT OF APPEAL FOR ONTARIO

CITATION: The Catalyst Capital Group Inc. v. Moyse, 2018 ONCA
    447

DATE: 20180511

DOCKET: C62655

Doherty, MacFarland and Paciocco JJ.A.

BETWEEN

The Catalyst Capital Group Inc.

Plaintiff (Appellant)

and

Brandon Moyse and West Face Capital Inc.

Defendants (Respondents)

Brian H. Greenspan, David C. Moore and Michelle
    Biddulph, for the appellant

Robert A. Centa, Kristian Borg-Olivier and Denise
    Cooney, for the respondent, Brandon Moyse

Kent E. Thomson, Matthew Milne-Smith and Andrew Carlson,
    for the respondent, West Face Capital Inc.

Heard:  February 20 and 21, 2018

On appeal from the decision of Justice F. Newbould of the
    Superior Court of Justice, dated August 18, 2016, dismissing Catalysts action,
    reported at 2016 ONSC 5271, and an application for leave and, if leave is
    granted, an appeal from the costs decision of Justice F. Newbould, dated
    October 7, 2016.

COSTS ENDORSEMENT

[1]

The respondent, West Face Capital Inc. (West
    Face), seeks costs in the amount of $250,000, inclusive of disbursements and
    HST. The respondent, Brandon Moyse, seeks costs in the amount of $149,905.18,
    also inclusive of disbursements and HST.

[2]

The appellant, Catalyst Capital Group
    Inc. (Catalyst), argues that West Face should have its costs in the amount of
    $150,000 and that Mr. Moyse should have no costs or, alternatively, costs in an
    amount well below the amount requested by Mr. Moyse.

[3]

The respondents were entirely successful
    on the appeal. They are entitled to reasonable costs on a partial indemnity
    basis.

[4]

The costs claimed, for what was basically
    a one-day appeal, are high. They reflect a full-out, no expense spared defence
    of the trial judgment. Catalyst did not provide the court with its bill of
    costs, but we have no doubt that it would reflect the same leave no stone
    unturned approach to the appeal. Given the history of this litigation, both
    sides would reasonably expect that the other side would pursue all legal
    avenues vigorously and thoroughly without financial restraint.

[5]

The nature of the appeal also justifies
significant
    preparation-related costs. Although the legal issues raised were, with one
    exception, not complex or novel, the appeal record was large. The grounds of
    appeal were essentially attempts to re-litigate most of the crucial findings of
    fact. The appellants written arguments were lengthy and replete with detailed
    references to the evidence. The respondents were required to engage in a detailed,
    careful and time-consuming review of the full record. Given the manner in which
    the appeal was advanced, the respondents had to prepare to virtually retry the crucial
    factual issues on appeal.

[6]

The appeal was adjourned at the last moment in September at the request of
    Catalyst. The adjournment turned out to be unnecessary. There were considerable
    costs thrown away and those costs should be included in the amounts awarded to
    the respondents.

[7]

The respondents brought a motion related to the fresh evidence in
    November 2017. That motion was never heard on its merits. We would impose no
    costs in respect of matters relating to that motion.

[8]

Having regard particularly to the success of the respondents, the nature
    of the appeal, and the costs thrown away when the appeal was adjourned, we
    award costs to West Face in the amount of $200,000 and costs to Mr. Moyse in
    the amount of $100,000. Both are inclusive of disbursements and HST.

Doherty J.A.

J. MacFarland J.A.

D.M. Paciocco J.A.


