



COURT OF APPEAL FOR ONTARIO

CITATION: DBDC Spadina Ltd. v. Walton, 2018 ONCA 232

DATE: 20180309

DOCKET: C62822

Cronk, Blair
*
and van Rensburg JJ.A.

BETWEEN

DBDC Spadina Ltd., and

Those corporations listed on
    Schedule A hereto

Applicants
    (Appellants)

and

Norma Walton, Ronauld Walton, The Rose &
    Thistle Group Ltd., and Eglinton Castle Inc. and
those corporations listed
    on Schedule C hereto

Respondents (
Respondents
)

and

Those corporations listed
    on Schedule B hereto,
to be bound by the result

and

Such other respondents
    from time to time as are on notice of these proceedings and are necessary to
    effect the relief sought

AND BETWEEN

Christine DeJong
    Medicine Professional Corporation

Applicant
    (Respondent)

and

Norma Walton,
    Ronauld Walton, and The Rose & Thistle Group Ltd.,
Prince Edward
    Properties Ltd., St. Clarens Holdings Ltd., and
Emerson Developments Ltd.

Respondents (
Respondents
)

Peter H. Griffin, D. Glatt and S.N. Roy, for the appellants

Rosemary A. Fisher, for the respondents

Heard: By written submissions

REASONS FOR DECISION

[1]

On January 25, 2018, this court released its decision allowing the
    appeal, and setting aside the judgment of the application judge. The court
    invited written submissions as to the costs of the application.

We
    have received and reviewed such submissions.

[2]

The appellants, who were successful on all aspects of the appeal, seek
    some of their costs of the application in the court below. In particular, they
    seek an order for the same amounts that were awarded to the respondents
    Christine DeJong Medicine Corporation (DeJong) and Dennis and Peggy Condos
    (the Condos) in the court below, namely $51,885.55 from DeJong and $14,017.28
    from the Condos. They submit that this is a significant and fair discount of
    their actual costs of approximately $300,000, which recognizes that the
    appellants and the respondents were all victims of the Waltons fraud. They
    rely on the fact that they incurred over $1 million in legal expenses in the
    overall litigation that uncovered and brought an end to the Waltons fraud,
    without hope of recovering any of the costs that they were awarded against the
    Waltons.

[3]

The respondents request that the parties bear their own costs of the
    application. They contend that, while the decision of the application judge was
    overturned by this court, the DeJong application and the respondents
    resistance to the judgment against the Listed Schedule C Corporations were
    reasonable. They point to the fact that this was a contest between victims, and
    that the practical effect of this courts judgment is that they will recover
    almost nothing from the proceeds of the Schedule C Properties in which they
    invested.

[4]

Costs are in the discretion of the court. The factors relevant to the
    exercise of discretion are set out in Rule 57.01 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194. They include the result and relative
    success of each party, the complexity of the proceeding, the importance of the
    issues and the conduct of any party that impacted the duration of the
    proceeding. The court must consider the purposes of costs, which include both
    the indemnification of successful litigants for costs of the litigation and the
    facilitation of access to justice:
Boucher v. Public Accountants Council
    (Ontario)
(2004), 71 O.R. (3d) 291 (C.A.), at paras. 35-37.

[5]

There is no question that the appellants were the successful parties,
    and that they would reasonably expect to be awarded their partial indemnity
    costs of the application, which would exceed the costs they now claim. The only
    issue is the impact of the fact that all of the parties were victims of the
    Waltons fraud. In our view, the appellants request that they be awarded the
    costs that the application judge awarded against them at first instance, is a
    reasonable response to both factors. When considered together with the fact
    that no costs of the appeal were awarded to the appellants, although
    successful, this is a just and fair disposition.

[6]

Accordingly, the appellants are entitled to their costs of the
    application fixed at $51,885.55 against DeJong and $14,017.23 against the
    Condos. Both amounts are inclusive of disbursements and applicable taxes.

E.A.
    Cronk J.A.

K.
    van Rensburg J.A.


SCHEDULE A COMPANIES

1.

Dr. Bernstein Diet Clinics Ltd.

2.
2272551 Ontario Limited

3.
DBDC Investments Atlantic Ltd.

4.
DBDC Investment Pape Ltd.

5.
DBDC Investments Highway 7 Ltd.

6.
DBDC Investments Trent Ltd.

7.
DBDC Investments St. Clair Ltd.

8.
DBDC Investments Tisdale Ltd.

9.
DBDC Investments Leslie Ltd.

10.
DBDC Investments Lesliebrook Ltd.

11.
DBDC Fraser Properties Ltd.

12.
DBDC Fraser Lands Ltd.

13.
DBDC Queens Corner Inc.

14.
DBDC Queens Plate Holdings Inc.

15.
DBDC Dupont Developments Ltd.

16.
DBDC Red Door Developments Inc.

17.
DBDC Red Door Lands Inc.

18.
DBDC Global Mills Ltd.

19.
DBDC Donalda Developments Ltd.

20.
DBDC Salmon River Properties Ltd.

21.
DBDC Cityview Industrial Ltd.

22.
DBDC Weston Lands Ltd.

23.
DBDC Double Rose Developments Ltd.

24.
DBDC Skyway Holdings Ltd.

25.
DBDC West Mall Holdings Ltd.

26.
DBDC Royal Gate Holdings Ltd.

27.
DBDC Dewhurst Developments Ltd.

28.
DBDC Eddystone Place Ltd.

29.
DBDC Richmond Row Holdings Ltd.


SCHEDULE
    B COMPANIES

1.

Twin Dragons
    Corporation

2.

Bannockburn Lands Inc.
    / Skyline  1185 Eglinton Avenue Inc.

3.

Wynford Professional
    Centre Ltd.

4.

Liberty Village
    Properties Ltd.

5.

Liberty Village Lands
    Inc.

6.

Riverdale Mansion Ltd.

7.

Royal Agincourt Corp.

8.

Hidden Gem Developments
    Inc.

9.

Ascalon Lands Ltd.

10.

Tisdale Mews Inc.

11.

Lesliebrook Holdings
    Ltd.

12.

Lesliebrook Lands Ltd.

13.

Fraser Properties Group

14.

Fraser Lands Ltd.

15.

Queens Corner Corp.

16.

Northern Dancer Lands
    Ltd.

17.

Dupont Developments
    Ltd.

18.

Red Door Developments
    Inc. and Red Door Lands Ltd.

19.

Global Mills Inc.

20.

Donalda Developments
    Ltd.

21.

Salmon River Properties
    Ltd.

22.

Cityview Industrial
    Ltd.

23.

Weston Lands Ltd.

24.

Double Rose
    Developments Ltd.

25.

Skyway Holdings Ltd.

26.

West Mall Holdings Ltd.

27.

Royal Gate Holdings
    Ltd.

28.

Royal Gate Nominee Inc.

29.

Royal Gate (Land)
    Nominee Inc.

30.

Dewhurst Development
    Ltd.

31.

Eddystone Place Inc.

32.

Richmond Row Holdings
    Ltd.

33.

El-Ad (1500 Don Mills)
    Limited

34.

165 Bathurst Inc.

SCHEDULE C PROPERTIES





3270 American Drive,
          Mississauga, Ontario




0 Luttrell Ave.,
        Toronto, Ontario




2 Kelvin Avenue,
        Toronto, Ontario




346 Jarvis Street,
        Suites A, B, C, E and F, Toronto, Ontario




1 William Morgan Drive,
        Toronto, Ontario



324 Price Edward Drive,
        Toronto, Ontario




24 Cecil Street,
        Toronto, Ontario




30 and 30A Hazelton
        Avenue, Toronto, Ontario



7
77 St. Clarens Avenue,
        Toronto, Ontario




252 Carlton Street and 478 Parliament Street, Toronto,
        Ontario





66 Gerrard Street East, Toronto, Ontario





2454 Bayview Avenue, Toronto, Ontario




319-321 Carlaw, Toronto, Ontario




260 Emerson Ave., Toronto, Ontario





44 Park Lawn Circle, Toronto, Ontario



19 Tennis Crescent, Toronto, Ontario





646 Broadview Avenue, Toronto, Ontario


Annexe
    A
Listed
    Schedule C Companies/Properties




Schedule C Company

Corresponding Schedule C Property



1.

United Empire Lands Ltd.

3270 American Drive, Mississauga, Ontario



2.

Bible Hill Holdings Inc.

0 Luttrell Ave., Toronto, Ontario



3.

6195 Cedar Street Ltd.

2 Kelvin Avenue, Toronto, Ontario



4.

Prince Edward Properties Ltd.

324 Prince Edward Drive, Toronto, Ontario



5.

Cecil Lighthouse Ltd.

24 Cecil Street, Toronto, Ontario



6.

Atala Investments Ltd.

30 and 30A Hazelton Avenue, Toronto, Ontario



7.

St. Clarens Holdings Ltd.

777 St. Clarens Avenue, Toronto, Ontario



8.

The Old Apothecary Building Inc.

66 Gerrard Street East, Toronto, Ontario



9.

1780355 Ontario Inc.

346 Jarvis Street, Suite F, Toronto, Ontario



10.

Emerson Developments Ltd.

260 Emerson Ave., Toronto, Ontario



*

Blair J.A. took no part in
    this decision.
