



COURT OF APPEAL FOR ONTARIO

CITATION: Perlmutter v. Smith, 2020 ONCA 611

DATE: 20200929

DOCKET: C68404

Lauwers,
    Brown and Nordheimer JJ.A.

BETWEEN

Isaac
    (Ike) Perlmutter and Laura Perlmutter

Applicants
    (Respondents)

and

David
    Smith

Respondent
    (Appellant)

AND BETWEEN

Harold
    Peerenboom

Applicant
    (Respondent)

and

David
    Smith

Respondent
    (Appellant)

Jordan Goldblatt and Jordan Katz, for
    the appellant

Jerome Morse and David Trafford, for the
    respondent Harold Peerenboom

Winston Fogarty and Pavle Masic, for the
    respondents Isaac Perlmutter and Laura Perlmutter

Heard: in writing

On appeal from the order of Justice
    Thomas R. Lederer of the Superior Court of Justice dated May 11, 2020, with
    reasons reported at 2020 ONSC 2679, and costs reasons reported at 2020 ONSC
    4722.

COSTS ENDORSEMENT

[1]

On September 11, 2020, we released our decision
    in which we dismissed Mr. Smiths appeal and denied Mr. Smith leave to appeal a
    costs order.  We invited the parties to make written submissions on the costs
    of the appeal.  We have now received and reviewed those submissions.

[2]

The appellant says that all parties should bear
    their own costs of the appeal. He says that this result would be consistent
    with the decision of the application judge who ordered no costs with respect to
    the matters before him. The appellant also says that it is impractical and
    inappropriate to award costs in light of the ongoing litigation in Florida,
    where these issues will be resolved and costs can be sought.

[3]

The Perlmutter respondents seek costs of $10,000
    from the appellant and $5,000 from the respondent Peerenboom. The Perlmutter
    respondents say that the appellant should have to pay costs because he was
    entirely unsuccessful in his appeal. They say that the respondent Peerenboom
    should have to pay some costs because he unduly complicated the issues involved
    in the appeal. The Perlmutter respondents say that the amount that they seek
    for costs is reasonable in all of the circumstances.

[4]

The respondent Peerenboom says that he made a
    number of offers to settle the appeal, all of which were rejected. As a
    consequence, the respondent Peerenboom seeks substantial indemnity costs
    payable by Mr. Smith and the Perlmutters in the amount of $50,000. In the
    alternative, he seeks his partial indemnity costs of $33,500.

[5]

In our view, it is appropriate for all of the
    parties to bear their own costs. In reaching that conclusion we have taken into
    account a number of factors. One is that the application judge reached that
    same conclusion with respect to the matters that were before him. We agree with
    his observation, at para. 15 of his costs reasons:

In the circumstances of this case it is not
    possible to meaningfully decide the issue of costs without knowing the ultimate
    results of the two actions.

[6]

Another is that, as this court noted in its
    reasons at para. 75: The jurisprudence does not establish any bright line rule
    regarding the award of costs on successful applications to enforce letters of
    request.

[7]

Yet another is that offers to settle are
    generally not considered in deciding costs in this court. Rule 49 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194 does not apply to appeals. That
    said, an offer to settle an appeal prior to argument may be taken into account
    when fixing costs but this power is exercised only on rare occasions:
Smith
    Estate v. Rotstein
, 2011 ONCA 833 at para. 16. This is not one of those
    rare occasions.

[8]

In the end result, we order that all parties shall
    bear their own costs of the appeal.

P. Lauwers
    J.A.
David Brown J.A.

I.V.B.
    Nordheimer J.A.


