



COURT OF APPEAL FOR ONTARIO

CITATION: Fram Elgin Mills 90 Inc. v. Romandale
  Farms Limited, 2021 ONCA 381

DATE: 20210602

DOCKET: C67533 and
C67557

Gillese, Lauwers and
    Benotto JJ.A.

DOCKET: C67533

BETWEEN

Fram Elgin Mills 90
  Inc. (formerly Frambordeaux
  Developments Inc.)

Plaintiff

and



Romandale Farms
  Limited
, Jeffrey Kerbel, 2001251 Ontario Inc.
  and First Elgin Developments Inc.
Defendants
(
Respondent
/Appellants)
AND BETWEEN
Fram 405 Construction
    Ltd. and Bordeaux Homes Inc.
Plaintiffs
and


Romandale Farms
  Limited
, 2001251 Ontario Inc., First Elgin Developments Inc. and
  Jeffrey Kerbel
Defendants
(
Respondent
/Appellants)
AND BETWEEN
Romandale Farms Limited
Plaintiff (Respondent)
and
2001251 Ontario Inc.
Defendant
  (Appellant)
AND BETWEEN
2001251 Ontario Inc.
Plaintiff (Appellant)
and
Romandale Farms Limited
Defendant
  (Respondent)
DOCKET: C67557
BETWEEN

Fram Elgin Mills 90
  Inc. (formerly Frambordeaux
    Developments Inc.)
Plaintiff (Appellant)
and

Romandale Farms
  Limited
, Jeffrey Kerbel,2001251 Ontario Inc.
  and First Elgin Developments Inc.
Defendants (
Respondent
)

AND BETWEEN


Fram 405
  Construction Ltd.
and Bordeaux Homes Inc.
Plaintiffs (
Appellant
)
and

First Elgin
    Developments Inc. and Jeffrey Kerbel
Defendants (
Respondent
)
AND BETWEEN
Romandale Farms Limited
Plaintiff
and
2001251 Ontario Inc.
Defendant
AND BETWEEN
2001251 Ontario Inc.
Plaintiff
and
Romandale Farms Limited
Defendant
Chris G. Paliare and Tina H. Lie, for the appellants
    Jeffrey Kerbel, 2001251 Ontario Inc., and First Elgin Developments Inc.
    (C67533)
Sheila R. Block, Jeremy Opolsky, Sara J. Erskine, and
    Benjamin Lerer for the appellants Fram Elgin Mills 90 Inc. (formerly
    Frambordeaux Developments Inc.) and Fram 405 Construction Inc. (C67557)
Sarit E. Batner, Kosta Kalogiros, and Avi Bourassa, for
    the respondent Romandale Farms Limited (C67533 and C67557)
Heard: September 8 and 9, 2020 by video conference
On appeal from the judgment of
    Justice Nancy J. Spies, of the Superior Court of Justice, dated September 13,
    2019, with reasons reported at 2019 ONSC 5322, and from the costs order, dated
    April 2, 2020.
COSTS ENDORSEMENT
[1]

Four actions involving the Lands in this proceeding were tried together
    in the fall of 2018 (the Actions). Romandale was awarded costs of the Actions,
    on a substantial indemnity basis, in the amount of $2,708,651.57. Those costs were
    made payable on a joint and several basis by Fram and Kerbel.
[2]

Fram and Kerbel each appealed to this court. Their appeals were consolidated
    (the Appeals). The Appeals were successful. The parties agreed on costs of
    the Appeals but were unable to resolve the matter of costs below. This costs
    endorsement decides that matter.
[3]

For the reasons that follow, Fram and Kerbel are entitled to partial
    indemnity costs for the Actions, in the amounts that each sought.
The Parties Positions
Fram
[4]

Fram seeks partial indemnity costs of $1,147,595.63 for the Actions. It
    did not succeed on its 2007 and 2008 Actions and did not appeal the trial decisions
    on them. Nonetheless, Fram argues, as a result of the Appeals, it has achieved overall
    success and is entitled to its costs of the Actions.
[5]

Fram also relies on having beat the offer to settle the litigation which
    it and Kerbel jointly made in September 2018 (the Settlement Offer), just
    before the trial of the Actions. Romandale rejected their Settlement Offer. At
    the oral hearing of the Appeals, the parties each stated that entitlement to
    costs of the Actions was on a partial indemnity basis. Accordingly, Fram did
    not advance a claim for enhanced costs under r. 49.10 of the
Rules of Civil
    Procedure
,
R.R.O. 1990, Reg. 194.
[6]

Finally, Fram contends that its costs are fair and reasonable.
Kerbel
[7]

Kerbel seeks partial indemnity costs of $956,002.50 for the Actions. It
    says those costs are fair and reasonable and reflect its overall success. Kerbel
    contends that the Actions, although not formally consolidated, were effectively
    consolidated with the evidence being used, and argument permitted, on all
    issues by all parties. Moreover, it points out that Romandale sought  and was
    awarded  costs of the Actions against Kerbel and Fram on a joint and several
    basis.
[8]

Like Fram, Kerbel also relies on the fact that it beat the Settlement Offer.
Romandale
[9]

Romandale accepts that Fram and Kerbel are entitled to their partial
    indemnity costs of the 2014 and 2016 Actions in which Kerbel claimed specific
    performance of the 2005 August Agreement. However, it submits that neither Fram
    nor Kerbel are entitled to costs of the 2007 and 2008 Actions which Fram
    unsuccessfully prosecuted against Romandale. As Fram did not appeal the results
    of those actions, Romandales success on those actions stands. Thus, Romandale
    submits, Fram should pay Romandale its partial indemnity costs of the 2007 and 2008
    Actions and Kerbel is not entitled to its partial indemnity costs relating to
    those Actions.
Analysis
[10]

Costs
    are not to be determined by considering success on an issue by issue basis.
    Rather, they are to be based on the overall success achieved by a party:
Wesbell
    Networks Inc. v. Bell Canada
, 2015 ONCA 33, at para. 21. In the
    circumstances of these Appeals, the same principle applies: costs of the Actions
    are to be determined by considering the overall success achieved by the parties
    as a result of the Appeals.
[11]

The
    Actions were tried together to ensure that the rights and interests of the
    parties, in the Lands, were properly determined. The Appeals determined those
    respective rights and interests with the result that Fram and Kerbel achieved
    overall success. The fact that Fram was unsuccessful on the 2007 and 2008
    Actions does not detract from its overall success. Moreover, the Actions were
    intertwined. As the reasons of this court demonstrate, the evidence relating to
    the 2007 and 2008 Actions was directly relevant to the disposition of the
    Appeals. The fact that costs below were awarded jointly and severally as
    against Fram and Kerbel, in accordance with Romandales request, is telling in
    this regard. Had the Actions been severable, as Romandale now maintains, costs
    of the 2007 and 2008 Actions would have been payable by Fram alone. Instead,
    Fram and Kerbel were held jointly and severally responsible for costs of all of
    the Actions.
[12]

Further
    and importantly, Fram and Kerbel achieved greater success on the Appeals than
    their Settlement Offer, which Romandale rejected.
[13]

We
    are satisfied that Fram and Kerbels partial indemnity costs are reasonable.
    This can be seen by comparing them to Romandales partial indemnity costs of $2,283,089.26
    for the Actions. As well, the amounts claimed and recovered were significant.
    The market value of the Lands in 2018 was $50,000,000. Finally, the matters in
    issue were complex, numerous, and very important to all the parties.
Disposition
[14]

Accordingly,
    Fram and Kerbel are entitled to partial indemnity costs of the Actions in the
    amounts that each claimed.
E.E. Gillese J.A.
P. Lauwers J.A.
M.L. Benotto J.A.