



COURT OF APPEAL FOR ONTARIO

CITATION: Ernst & Young Inc. v. Essar Global Fund
    Limited, 2018 ONCA 405

DATE: 20180427

DOCKET: C63581/C63588

Blair
*
,
    Pepall and van Rensburg JJ.A.

BETWEEN

Ernst
    & Young Inc. in its capacity as Monitor of all of the following:
    Essar Steel Algoma Inc., Essar Tech Algoma Inc., Algoma
    Holdings B.V., Essar Steel Algoma (Alberta) ULC, Cannelton Iron Ore Company
    and Essar Steel Algoma Inc. USA

Plaintiff (Respondent)

and

Essar Global Fund Limited
, Essar Power Canada Ltd.,
New Trinity Coal, Inc.
,
Essar
    Ports Algoma Holding Inc.
,
Algoma Port Holding Company Inc.
,
Port
    of Algoma Inc.
,
Essar
    Steel Limited
and
Essar Steel Algoma Inc.

Defendants (
Appellants
/
Respondent
)

Patricia D.S. Jackson, Andrew Gray, Jeremy R. Opolsky,
    Alexandra Shelley and Davida Shiff, for the appellants Essar Global Fund
    Limited, New Trinity Coal, Inc., Essar Ports Algoma Holding Inc., Algoma Port
    Holding Company Inc., Port of Algoma Inc., and Essar Steel Limited

Clifton P. Prophet, Nicholas Kluge and Delna Contractor,
    for the respondent Ernst & Young Inc. in its capacity as Monitor of Essar
    Steel Algoma Inc. et al.

Eliot Kolers and Patrick Corney, for the respondent
    Essar Steel Algoma Inc.

Peter H. Griffin, Monique Jilesen, Robert Trenker and
    Kim Nusbaum, for the appellants GIP Primus, L.P. and Brightwood Loan Services
    LLC

Heard: In writing

On appeal from the judgment of Justice Frank Newbould of
    the Superior Court of Justice, dated March 15, 2017, with reasons reported at
    2017 ONSC 1366, 137 O.R. (3d) 438 and from the costs order, dated June 29,
    2017, with reasons reported at 2017 ONSC 4017, 50 C.B.R. (6th) 148.

COSTS ENDORSEMENT

[1]

On consent, the parties fixed the quantum of the costs of the appeal. 
    Being the unsuccessful parties, Essar Global Fund Limited, New Trinity Coal,
    Inc., Essar Ports Algoma Holding Inc., Algoma Port Holding Company Inc., Port
    of Algoma Inc., and Essar Steel Limited (collectively, Essar) and GIP Primus
    L.P. and Brightwood Loan Services LLC (collectively, GIP) are to pay Ernst
    & Young Inc. in its capacity as monitor of Essar Steel Algoma Inc., Essar
    Tech Algoma Inc., Algoma Holdings B.V., Essar Steel Algoma (Alberta) ULC,
    Cannelton Iron Ore Company, and Essar Steel Algoma Inc. USA (the Monitor)
    $100,000 and Essar Steel Algoma Inc. (Algoma) $60,000 in costs on a partial
    indemnity scale, inclusive of disbursements and applicable tax.  However, the parties
    were unable to agree on whether liability for the costs should be several or joint
    and several.

[2]

GIP submits that the costs payable by GIP and Essar should be paid on a
    several basis with a maximum of 20% of the costs award being apportioned to GIP
    and the remainder to Essar.  Essar is unopposed to this submission.

[3]

GIP submits that it would be unfair and disproportionate to award costs
    on a joint and several basis against GIP and Essar given that: GIP only
    appealed two discrete issues; was allocated only one-quarter of the time for
    argument that Essar was given; its interests differed from those of Essar; and
    it felt it had to act to protect its own interests.

[4]

The respondents both submit that the costs should be payable on a joint
    and several basis.  They argue that GIP did not confine itself to discrete
    issues on appeal but instead supported the broader position advanced by Essar. 
    In addition, they state that GIP would have no difficulty paying the entire
    amount of the costs award and that the total costs award is a tiny fraction of
    the amount in issue on this appeal.

[5]

Alternatively, they argue that the costs should be apportioned on a
    75/25% basis as between Essar and GIP, in accordance with the time allocated
    for oral argument.

[6]

We agree with GIP that the costs award should be proportional to its
    involvement.  It had a more limited role than Essar and focused on different
    issues.  The time allocated to GIP for oral argument reflected this reality.  A
    joint and several award would be an unfair and disproportionate burden on GIP.

[7]

In the circumstances, costs of the appeal of $100,000 in favour of the
    Monitor and $60,000 in favour of Algoma are awarded on a several basis with 25%
    being allocated to GIP and 75% to Essar.

S.E. Pepall J.A.

K. van Rensburg J.A.





*

Blair J.A. took no part in this costs endorsement.


