



COURT OF APPEAL FOR ONTARIO

CITATION: Scamurra v. Sandy Scamurra &
    Sons Limited, 2016 ONCA 446

DATE: 20160607

DOCKET: C60913

Strathy C.J.O., Lauwers and Benotto JJ.A.

BETWEEN

Sandy Scamurra

Applicant

(Respondent/Appellant
    by Cross-Appeal)

and

Sandy Scamurra & Sons Limited, Sandy Scamurra
    Contracting Ltd., 726127 Ontario Inc.,
Albert Scamurra
,
Felix
    Scamurra
, AFJ Disposal Inc., TD Canada Trust and Royal Bank of Canada

Respondents

(
Appellants
/
Respondents
    by Cross-Appeal
)

Michael N. Freeman, for the appellants/respondents by
    cross-appeal

Albert Campea, for the respondent/appellant by
    cross-appeal

Heard: March 18, 2016

On appeal from the judgment of Justice Gordon D. Lemon of
    the Superior Court of Justice, dated August 7, 2015.

COSTS ENDORSEMENT

[1]

The appellants were successful in the
    appeal, the cross-appeal and in relation to the respondents motion to admit
    fresh evidence. Notwithstanding the respondents lack of success, he seeks
    costs. He relies on the share purchase agreement which provides that the
    appellants are liable to him for all his costs incurred in the event of
    default by the appellants. The respondent submits that this provision extends
    to his costs in relation to the matters before this court.

[2]

We do not agree. The provision in the
    share purchase agreement cannot be used to indemnify the respondent for unsuccessfully
    responding to an appeal, launching an unsuccessful cross-appeal and submitting
    a failed motion for fresh evidence.

[3]

The appellants are entitled to costs on
    a partial indemnity basis, fixed at $20,000 inclusive of disbursements and
    taxes.

George R. Strathy C.J.O.

P. Lauwers J.A.

M.L. Benotto J.A.


