



COURT OF APPEAL FOR ONTARIO

CITATION: Lixo Investments Limited v. FCHT Holdings

(Ontario) Corporation, 2017 ONCA 239

DATE: 20170324

DOCKET: C62243

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

Lixo Investments Limited

Appellant (Applicant)

and

FCHT Holdings (Ontario)
    Corporation
, Priestly Demolition Inc., Traugott Building Contractors
    Inc., City of Toronto and Ann Borooah, in her capacity as Chief Building
    Official

Respondent
(Respondents)

Peter-Paul E. Du Vernet, for the
    appellant

Molly Reynolds and Eliot Che, for the respondent

Heard: March 21, 2017

On appeal from the order of Justice James Diamond of the Superior
    Court of Justice, dated June 15, 2016.

ENDORSEMENT

[1]

The respondent acquired 86 Yorkville Avenue several months after a fire
    originating in the building caused extensive damage to the property and to the
    appellants adjoining property at 84 Yorkville Avenue. The properties are semi-detached
    and share a common dividing wall. The appellant brought an application seeking
    various relief, including recovery of losses suffered as a result of the fire
    and subsequent conduct of the respondent and its predecessor in title that
    impaired the appellants ability to use its property.

[2]

The appellant argues that the application judge erred in dismissing part
    of the relief sought. Specifically, it argues that the application judge erred
    in concluding that the respondent did not, as a result of it having purchased 86
    Yorkville Avenue, become liable for the damages allegedly caused to the
    appellant prior to the respondents purchase of 86 Yorkville Avenue.

[3]

We disagree with the appellants submission. In our view, the
    application judge committed no reversible error.

[4]

On the facts of this case, the respondent had no involvement in and
    cannot be responsible for the appellants damages accrued before the respondent
    acquired 86 Yorkville Avenue. As acknowledged by the respondent, the
    application judges decision does not prevent the appellant from proceeding
    with its claims against the respondent for any damages suffered by the appellant
    during the period of the respondents ownership of the property that are caused
    by the respondents tortious conduct.

[5]

We also see no basis to interfere with the application judges costs
    award. Deference is owed to judges determination of the appropriate award of
    costs. We see no basis to interfere with the application judges decision.

[6]

The respondent seeks $37,927.89 in partial indemnity costs for the
    appeal. In our view this amount is excessive in light of the nature of the
    appeal and taking into account the reasonable expectations of the parties. Of
    note is the fact that, had the appellant been successful, it sought only
    $10,261.13.

[7]

As a result, the appeal is dismissed. The respondent is entitled to its
    costs on a partial indemnity basis fixed in the amount of $10,000 inclusive of
    disbursements and applicable taxes.

Paul Rouleau J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.


