



COURT OF APPEAL FOR ONTARIO

CITATION: Abrahamovitz v. Berens, 2018 ONCA 512

DATE: 20180601

DOCKET: C63272

Laskin, Feldman and Miller JJ.A.

BETWEEN

Faigie Abrahamovitz and Frances Spiro

Plaintiffs (Respondents)

and

Mark Berens, Megapro Property Management Ltd.,
    3030 Danforth Ltd., T.W.M. Consolidated Holdings Inc., and Lois Kalchman

Defendants

Samuel S. Marr and Zachary Silverberg, for the appellant,
    the Estate of Gabriel Zimmerman

David P. Jacobs, for the respondents

Heard: August 21, 2017

On appeal from the order of Justice Robert F. Goldstein
    the Superior Court of Justice, dated January 11, 2017, with reasons reported at
    2017 ONSC 184.

COSTS ENDORSEMENT

[1]

On March 15, 2018, this court released its decision allowing the appeal
    of the appellant, the Estate of Gabriel Zimmerman, and awarding the Estate its costs
    of the appeal: see
Abrahamovitz v. Berens
, 2018 ONCA 252.

[2]

On April 11, 2018, the Estate wrote to the panel asking for an opportunity
    to make submissions on the issue of costs of the motion below. In a letter dated
    April 18, 2018, we directed the parties to provide written submissions on what
    amount the Estate was entitled to, as well as what amount, if any, should be
    awarded to the defendants, given that they participated in the motion below but
    not on the appeal. We have now received and reviewed those submissions.

[3]

The Estate submits that it should be awarded $24,655.00, or the amount
    of costs originally awarded against it by the motion judge, modified to reflect
    a partial indemnity scale. The Bill of Costs the Estate submitted indicates its
    actual partial indemnity costs were $10,288.55, including HST and
    disbursements.

[4]

The respondents submit that, because this court granted the appeal on
    the issue of adding the Estate to the litigation, but did not address a
    secondary issue  whether the defendants should be granted an interpleader
    order  there was mixed success on the motion below, such that each party
    should bear its own costs. Alternatively, the respondents submit that the
    Estate should not be granted the $24,655.00 it seeks; any costs awarded should
    be limited to the Estates actual partial indemnity costs.

[5]

The Estate also submits that the defendants are entitled to costs on the
    motion below. Although they did not participate in the appeal, given our
    decision on appeal, they are now at least partially successful. The respondents
    do not address this issue.

[6]

We agree with the Estate that it is entitled to its costs on the motion
    below. The main focus of this appeal and of the motion below was the issue that
    the Estate successfully appealed: whether it was entitled to be added as a
    party to the underlying action. However, we agree with the respondents that the
    Estates costs should be limited to the actual partial indemnity costs it
    incurred.

[7]

We also agree with the Estate that the defendants are entitled to their
    costs on the motion below on a partial indemnity basis. In its written
    materials, the Estate provided a copy of the defendants certified Bill of
    Costs from the motion below, which evidences partial indemnity costs of $
8,227.97
, inclusive
    of disbursements and HST.

[8]

We therefore order the respondents pay the Estate and the defendants their
    costs of the motion below, fixed in the amount of $10,000, inclusive of
    disbursements and HST, payable to the Estate and $8,000, inclusive of
    disbursements and HST, payable to the defendants.

John
    Laskin J.A

K.
    Feldman J.A.

B.W. Miller J.A.


