



COURT OF APPEAL FOR ONTARIO

CITATION: Rutman v. Rabinowitz, 2018 ONCA 279

DATE: 20180320

DOCKET: C63148

Cronk, Huscroft and Nordheimer JJ.A.

BETWEEN

Ronald Rutman

Respondent/Plaintiff

and

Saul Rabinowitz, Moishe
    Bergman, Artcraft Company Inc.,

John Doe 4 and John Doe
    5

Appellants/Defendants

Helen A. Daley and Michael Finley, for the appellants
    Moishe Bergman and Artcraft Company Inc.,

John J. Adair, for the appellant Saul Rabinowitz

Matthew P. Sammon and S. Jessica Roher, for the
    respondent

Heard: November 16, 2017

On appeal from the judgment of Justice Michael A. Penny
    of the Superior Court of Justice (Commercial List), dated November 30, 2016,
    with reasons reported at 2016 ONSC 5864.

COSTS ENDORSEMENT

[1]

On January 31, 2018, this court released its decision dismissing the
    appeal, and awarding costs of the appeal to the respondent. We invited the
    parties to make submissions on the issue of the appropriate quantum of those
    costs. We have now received and reviewed those submissions.

[2]

The respondent submits that he ought to receive his costs on a
    substantial indemnity basis given the nature of the underlying allegations and
    the findings made by the trial judge. He seeks those costs in the amount of
    $64,644.01. The appellants submit that there is no principled basis to award
    the costs of the appeal on a substantial indemnity basis. They contend that
    their impugned conduct has been sanctioned by the award of substantial
    indemnity costs at trial and the award of punitive damages. The appellants say
    that a reasonable amount for costs of the appeal on the partial indemnity scale
    is $30,000.

[3]

We agree with the appellants. While the trial judge properly awarded
    substantial indemnity costs of the trial given the underlying conduct of the
    appellants, there is no principled basis to do so with respect to the appeal. Any party has a right of appeal and they ought not to be penalized for
    exercising that right unless there is something in the conduct of the appeal
    itself that warrants such a sanction. There is no such conduct in this case. While the appellants were unsuccessful in their appeal, they were entitled to
    have the trial judge's decision reviewed by this court and, in doing so, they
    raised legitimate issues.

[4]

We therefore grant the respondent his costs of the appeal, fixed in the
    amount of $30,000, inclusive of disbursements and HST, payable by the
    appellants jointly and severally.

"E.A. Cronk J.A."

"Grant Huscroft J.A."

"I.V.B. Nordheimer J.A."


