



COURT OF APPEAL FOR ONTARIO

CITATION: Atlas (Brampton) Partnership v. Canada Grace Park
    Ltd., 2021 ONCA 334

DATE: 20210518

DOCKET: C68360

Lauwers, Miller and Nordheimer JJ.A.

BETWEEN

Atlas (Brampton) Limited
    Partnership,
Romlex International Ltd. and Peter Grigoras

Applicants
    (Appellants)

and

Canada Grace Park Ltd.,
    Zing Ou Yang
and Atlas Sprinkbank Developments Ltd.

Respondents (Respondents)

Jeffrey A. Kaufman, for the appellants

Paul H. Starkman, for the respondents

Heard: in writing

On appeal from the judgment of Justice David Aston of the
    Superior Court of Justice, dated April 6, 2020, with reasons reported at 2020
    ONSC 1861

COSTS ENDORSEMENT

[1]

On April 9, 2021, we released our decision in which we dismissed the
    appeal in this matter. We have now received and reviewed the parties
    submissions on costs.

[2]

The respondents ask for their costs of the appeal in the amount of
    $15,517.16. In addition, the respondents seek a cost award of $10,335.06 for certain
    motions that were brought in advance of the appeal but which did not proceed
    because the hearing of the appeal was set before those motions were ready to be
    heard. The appellants motion was for an interim injunction to restrain the
    respondents from disposing of the subject property, pending the disposition of
    this appeal. The respondents brought a motion for security for costs.

[3]

The appellants submit that there should be no costs of the appeal
    because success was divided. In the alternative, the appellants submit that
    there should be no award of costs because the issues raised were novel. In the
    further alternative, the appellants submit that the costs awarded should be
    reduced to reflect the divided result. On the issue of the motions brought, the
    appellants submit that there is no basis for costs to be awarded as neither
    motion proceeded.

[4]

We do not accept that there was divided success on the appeal. The
    respondents were wholly successful in upholding the application judges
    decision. The fact that the reasoning was different in this court than in the
    court below does not constitute divided success. This is not a case like

Schill
    & Beninger Plumbing & Heating Ltd. v. Gallagher Estate

(2001),140
    O.A.C. 353 (C.A.), 6 C.P.C. (5th) 80, where no costs were awarded because the
    appellant was unsuccessful on her appeal but for one issue.

[5]

We also do not accept that the issues raised were novel as that
    concept is properly understood in the context of costs:
Przyk v. Hamilton
    Retirement Group Ltd. (c.o.b. Court at Rushdale)
,
2021 ONCA 267, at
    para. 35.

[6]

Finally, the fact that the motions were overtaken by the appeal hearing
    does not mean that there should not be any award of costs with respect to them.
    Costs would have been incurred by the respondents, both in bringing their
    motion and in responding to the appellants motion. However, the fact that the
    motions were never argued should result in a significantly reduced award of
    costs.

[7]

In our view, an award of costs to the respondents in the amount of $15,000,
    inclusive of disbursements and HST, is a fair and reasonable amount to fix for
    the costs of the appeal. An award of costs to the respondents in the amount of
    $5,000, inclusive of disbursements and HST, is a fair and reasonable amount to
    fix for the costs of the two motions.

P. Lauwers J.A.

B. W. Miller J.A.

I.V.B. Nordheimer
    J.A.


