



COURT OF APPEAL FOR ONTARIO

CITATION:  Canadian Imperial Bank of Commerce v. Deloitte
    & Touche, 2017 ONCA 43

DATE: 20170119

DOCKET: C61569

Hoy A.C.J.O., Benotto and Huscroft JJ.A.

BETWEEN

Canadian Imperial Bank of Commerce, High River
    Limited Partnership and Philip Services Corp. by its Receiver and Manager,
    Robert Cumming

Plaintiffs (Appellants)

and

Deloitte & Touche, Deloitte
    & Touche LLP, Deloitte Touche Tohmatsu, Deloitte Touche Tohmatsu LLP and
    Deloitte Touche Tohmatsu f/k/a Deloitte Touche Tohmatsu International

Defendants (Respondents)

Thomas J. Dunne, Q.C., John E. Callaghan and Benjamin
    Na, for the appellants, High River Limited Partnership and Canadian Imperial
    Bank of Commerce

Robb C. Heintzman, Michael D. Schafler and Mark G.
    Evans, for the respondents, Deloitte & Touche LLP, Deloitte Touche Tohmatsu
    LLP and Deloitte Touch Tohmatsu f/k/a Deloitte Touche Tohmatsu International

Heard: October 5, 2016

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated December 10, 2015, with reasons reported at 2015
    ONSC 7695, 25 C.C.L.T. (4th) 194.

COSTS ENDORSEMENT

[1]

We directed that if the parties were unable to agree on the costs of the
    partial summary judgment motion below and the appeal, they could provide brief
    written submissions within 21 days.

[2]

We have received and reviewed written submissions from the parties. They
    agree on the quantum of the costs of the motion below and the appeal, but do
    not agree on when those costs should be paid.

[3]

The respondents (Deloitte) submit that the motion judge ordered that
    costs of the motion should be in the cause and there is no reason to disrupt
    that aspect of his disposition. It says that there is an agreement between the
    parties that has governed this action since its inception: no money is to
    change hands on interlocutory motions until the final resolution of the
    proceeding.

[4]

In the alternative, Deloitte submits that the issue of costs on the
    underlying motion should be remitted to the motion judge for consideration.

[5]

We agree with the appellants (the Lenders) that costs for both the
    motion below and the appeal should fixed in the amounts agreed and made payable
    by Deloitte within 30 days.

[6]

Deloittes submission that the parties agreed that no money is to change
    hands on interlocutory motions until the final resolution of this proceeding is
    inconsistent with its position before the motion judge that the Lenders should
    pay costs of the motion to Deloitte within 30 days and with costs orders made
    in the earlier stages of this litigation.

[7]

And in our view, this is not an appropriate circumstance in which to
    order costs in the cause. We concluded that the motion judge erred in
    determining that there was no risk of duplicative or inconsistent findings at
    trial and that granting partial summary judgment was advisable in the context
    of the litigation as a whole. Whether or not the Lenders prevail at trial, the
    costly partial summary judgment motion brought by Deloitte was flawed.

[8]

We are not persuaded that it is appropriate to remit this issue to the
    motion judge for determination.

[9]

Accordingly, costs for both the motion below and the appeal shall be
    fixed in the amounts agreed and made payable by Deloitte within 30 days.

Alexandra
    Hoy A.C.J.O.

M.L. Benotto J.A.

Grant Huscroft J.A.


