



COURT OF APPEAL FOR ONTARIO

CITATION: RJM56 Investments Inc. v. Kurnik, 2017 ONCA 19

DATE: 20170112

DOCKET: C61469

Cronk, Rouleau and Huscroft JJ.A.

BETWEEN

RJM56 Investments Inc.

Applicant
(Appellant)

and

Kevin Kurnik and Canada Revenue Agency

Respondents
(Respondents in Appeal)

Application under Rule 14.05(3)(d) and (g) of the
Rules of
    Civil Procedure

AND BETWEEN

DOCKET: C61468

Kevin Kurnik
and the
    Kurnik Family Trust

Plaintiffs
(
Respondent
)

and

Martin McCarthy, the McCarthy Family Trust,
RJM56 Investments Inc.
(formerly R.J. McCarthy Limited)
, RJM56 Holdings Inc. (formerly R.J.
    McCarthy Holdings Inc.), 1434669 Ontario Inc. and 214CO Investments Inc.
    (formerly 2140831 Ontario Inc.)

Defendants
(
Appellant
)

Melvyn L. Solmon and David M. Sherman, for the appellant

Michael R. Kestenberg, for the respondent

Andrew Kinoshita and P. Tamara Sugunasiri, for Canada
    Revenue Agency

Heard: September 21, 2016

On appeal from the judgment of Justice Suhail A.Q. Akhtar
    of the Superior Court of Justice, dated November 10, 2015.

COSTS ENDORSEMENT

[1]

On November 4, 2016, this court issued its decision allowing the appeal
    in part. We allowed the appellants appeal from the judgment granting partial
    summary judgment but dismissed its appeal of the lower courts dismissal of its
    application. The appellant was awarded its costs of the appeal fixed in the
    amount of $15,000 inclusive of disbursements and applicable taxes. The decision
    also provided that if the parties could not agree on costs in the court below,
    they were to make brief written submissions. These have now been received.

[2]

The appellant seeks costs in the court below on a partial indemnity
    basis from the commencement of the application up to the date of its offer to
    settle and on a substantial indemnity basis thereafter under rule 49 of the
Rules
    of Civil Procedure
, for its original application and for defending against
    the respondents motion. In the alternative, the appellant seeks partial
    indemnity costs for the proceedings in the court below fixed in the amount of
    $57,031.43, inclusive of disbursements and HST. It also seeks costs of the
    appeal on a substantial indemnity basis based on the offer to settle that was
    made in the context of its application.

[3]

The costs of the appeal were fixed in our original decision and we see
    no basis on which to review that decision.

[4]

With respect to the costs of the original application and motion, we
    agree with the respondents submission that the offer to settle referred to by
    the appellant is of no relevance to the issue of costs. It was made as an offer
    to settle the appellants own application and that application has been
    dismissed. We also agree with the respondents submission that the result on
    appeal, and as a consequence in the court below, was mixed. This is because the
    appeal was allowed strictly on the basis of the motion and the appeal of the
    dismissal of the application was dismissed as moot.

[5]

In our view, the $57,031.43 being sought by the appellant in partial
    indemnity costs for the original application and motion is excessive. In the
    court below, the respondent, who had initially been successful on both the
    application and the motion, received a costs award of $28,565.99. In our view,
    taking into account the fact that the appellants application was not
    successful but that the appellant was successful on appeal with respect to the
    motion and specifically on the critical issue of its obligation to pay
    additional amounts to the respondent, a reasonable amount for costs in the
    court below is the same amount originally awarded to the respondent, that is,
    $28,565.99.

[6]

In conclusion, costs of the application and motion in the court below
    are awarded to the appellant fixed in the amount of $28,565.99, inclusive of
    disbursements and applicable taxes.

E.A.
    Cronk J.A.

Paul
    Rouleau J.A.

Grant Huscroft J.A.


