



COURT OF APPEAL FOR ONTARIO

CITATION: Luckevich v. Ivany, 2018 ONCA 254

DATE: 20180314

DOCKET: C64299 & C64300

Doherty, Paciocco and Nordheimer JJ.A.

BETWEEN

Lydia Luckevich and Pemberley Investments Ltd.

Plaintiffs (Respondents)

and

Howard Paul Ivany
and Terrence S. Reiber

Defendants (
Appellant
)

AND BETWEEN

Janet Louise Hilson and 1771085 Ontario Limited

Plaintiffs (Respondents)

and

Howard Paul Ivany
and Terrence S. Reiber

Defendants (
Appellant
)

Michael Katzman, for the appellant

Howard W. Reininger, for the respondents

Tim Duncan, for the Trustee in Bankruptcy

Heard: February 5, 2018

On appeal from the orders of Justice Meredith Donohue of the
    Superior Court of Justice, dated August 8, 2017, sitting without a jury.

COSTS ENDORSEMENT

[1]

On February 14, 2018, we released our decision in which we allowed the
    appeals and set aside the orders below.  We invited the parties to make written
    submissions on the costs of the appeals.  We have now received and reviewed
    those submissions.

[2]

The appellant seeks his costs of the appeals in the amount of $9,785.34
    on the basis that he was successful on his appeals.  The respondents, Luckevich
    and Hilson, seek their costs of the appeals in the amount of $8,663.25 on the
    basis that they were successful on the main point, that is, that the possible
    third party claim was a chose in action and vested in the Trustee in
    Bankruptcy.  The Trustee in Bankruptcy also seeks its costs of the appeals in
    the amount of $10,000.00 although the Trustee alternatively submits that there
    should be no order as to costs.

[3]

In our view, there should be no costs of the appeal or of the motions
    below.  There was divided success on the appeal.  While admittedly the
    respondents were successful on the chose in action issue, the appellant was
    successful on gaining the right to have the issue, about whether he should be
    allowed to advance third party claims, heard and determined within the s. 37
    application.  As we said in our reasons, that right ought to have been accorded
    to the appellant when the matter was before the motion judge.  The respondents
    resisted that right then and on this appeal.

[4]

In the end result, we order that there be no costs of the appeal and no
    costs of the hearing before the motion judge.

Doherty J.A.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.


