



COURT OF APPEAL FOR ONTARIO

CITATION: Singh v. Trump, 2017 ONCA 34

DATE: 20170116

DOCKET: C60787

Rouleau, van Rensburg and Benotto JJ.A.

BETWEEN

Sarbjit Singh

Plaintiff (Appellant)

and

Donald John Trump Sr.
,
Trump Toronto Hotel Management Corp., Trump Marks
Toronto LP,
Talon International Inc.,
Talon International
Development Inc.,
Val Levitan
,
Alex Shnaider
and Toronto
Standard Condominium Corporation No. 2267

Defendants (Respondents)

AND BETWEEN

Se Na Lee

Plaintiff (Appellant)

and

Donald John Trump Sr.
,
Trump Toronto Hotel Management Corp., Trump Marks
Toronto LP,
Talon International Inc.,
Talon International
Development Inc.,
Val Levitan
,
Alex Shnaider
and Toronto
Standard Condominium Corporation No. 2267

Defendants (Respondents)

Mitchell Wine and Kevin D. Sherkin, for the appellants

Symon Zucker, Melvyn L. Solmon and Nancy J. Tourgis, for
    the respondents

Heard: June 23, 2016

On appeal from the orders of Justice Paul M. Perell of
    the Ontario Superior Court of Justice, dated July 10, 2015, with reasons
    reported at 2015 ONSC 4461, 47 B.L.R. (5th) 269.

COSTS ENDORSEMENT

[1]

In our October 13, 2016 decision, we allowed the plaintiffs appeal from
    the dismissal of their motions for partial summary judgment. Among other relief
    we awarded the plaintiff, Sarbjit Singh, rescission of his agreement of
    purchase and sale and awarded the plaintiff, Se Na Lee, damages as against
    Talon International Inc. The calculation of Ms. Lees damages was, however,
    left to be determined by the Superior Court of Justice in the continuing
    proceedings.

[2]

The two cases on appeal were said to be representative of claims in 20
    other outstanding actions against the same defendants. Those 20 other matters, as
    well as other aspects of the claims brought by the two appellants, remain to be
    determined.

[3]

Further, our October 13 decision confirmed that the partial summary
    judgment motion brought against Alex Shnaider, Val Levitan and Donald J. Trump
    Sr. was properly dismissed. It also provided, however, that the claims that
    were not the subject of the partial summary judgment motions against these
    three defendants could proceed.

[4]

Finally, our October 13 decision awarded costs of the appeal to the
    appellants and provided that if the parties could not agree on the costs of the
    original summary judgment motions, brief submissions in writing could be made.
    Those submissions have now been received.

[5]

The appellants argue that they should be awarded the costs of their
    actions through to the partial summary judgment motions, with partial indemnity
    costs up to the date of their offers to settle and substantial indemnity costs
    thereafter under rule 49 of the
Rules of Civil Procedure
. They seek a
    total of $235,661.69 including fees, disbursements and applicable taxes.

[6]

The respondents argue that the offers to settle were not capable of
    acceptance because they were not for a fixed amount as they provided for the
    accrual of interest. The respondents further submit that the offers ought not
    to be considered as they required acceptance not only of settlement of the
    appellants claims but also of the claims in the 20 other similar actions that
    are outstanding. They also maintain that the costs claimed are too high as they
    include the costs of litigating all of the 22 actions against the respondents.
    Further, they argue that the amount claimed for costs assumes that the
    appellants actions are now complete whereas, as noted above, aspects of those
    claims remain outstanding including the calculation of Ms. Lees damages. Finally,
    they note that the summary judgment motions against the three individual
    defendants were dismissed and maintain that those defendants are therefore entitled
    to their costs.

[7]

In our view, the offers to settle do not, as the respondents suggest,
    require that the respondents agree to settle all 22 outstanding actions brought
    against them. The offers contemplate settlement on a case by case basis,
    although the proposed terms of settlement are the same for all of the similar
    claims. Nor does the provision for interest in those offers to settle, which
    referred to interest to be paid pursuant to the
Courts of Justice Act
, R.S.O.
    1990, c. C.43, make them not capable of acceptance and not compliant with rule
    49. This said, however, determining appropriate costs for the summary judgment
    motions is not straightforward.

[8]

There is no dispute that the appellants ought to be awarded their costs
    of the summary judgment motions other than the portion of the costs relating to
    the partial summary judgment motions against the three individual defendants.
    It is apparent from the materials filed that the costs relating to that portion
    of the partial summary judgment motions constitutes only a small fraction of
    the costs incurred.

[9]

The difficulty lies in setting the appropriate amount. Our decision
    awards partial summary judgment to the appellants but it is not yet clear
    whether the appellants will be proceeding with the other aspects of their claims
    and, as noted earlier, the Superior Court must still determine the amount of
    Ms. Lees damages.

[10]

The appellants maintain, however, that they should be awarded their
    costs of the entire actions. In any event, they argue that of the $184,821.50
    in fees claimed, fully $154,427 of this amount was incurred for the summary
    judgment motions themselves. None of the costs relate to the other 20 similar
    claims. They also maintain that substantial indemnity costs of the partial
    summary judgment motions are appropriate as the amount awarded exceeds the
    amount of their offers to settle the appellants entire claims.

[11]

In these unusual circumstances, we consider it appropriate to make a significant
    award of costs for the partial summary judgment motions. We do not consider it
    appropriate to award costs for the entire actions as the claims are still
    ongoing. As a result, we effect a significant reduction to the amount claimed
    to account for the dismissal of the partial summary judgment motions as against
    the three individual defendants, as well as the fact that a significant portion
    of the amount claimed does not relate to the summary judgment motions themselves.

[12]

We therefore award the appellants their costs of the partial summary
    judgment motions in the court below, fixed in the amount of $180,000, inclusive
    of disbursements and applicable taxes.

[13]

As the motions for partial summary judgment were dismissed as against
    the three individual defendants, those defendants are entitled to their costs of
    the original motions on a partial indemnity basis. Their involvement in the
    partial summary judgment motions was quite limited and, as a result, we
    consider that the amount of $10,000 proposed by the respondents is too high. An
    appropriate award is $7,000, inclusive of disbursements and applicable taxes.

Paul Rouleau J.A.

K. van Rensburg J.A.

M.L. Benotto J.A.


