1. Ash v. Corp. of Lloyd's, [1992] O.J. No. 3986

Ash v. Corp. of Lloyd's, [1992] O.J. No. 3986

Ontario Judgments

Ontario Court of Appeal

Toronto, Ontario

Carthy, Osborne and Abella JJ.A.

Heard: June 9-11, 1992.

Judgment: October 6, 1992.

Docket No. CA C9113

[1992] O.J. No. 3986 | 9 O.R. (3d) 755 | 60 O.A.C. 241 | 35 A.C.W.S. (3d) 1036 | 1992 CanLII 7659

Between C. William Ash, C. Russ Bailey, Margaret D. Bailey, Ray Bednarz, Ronald D. Besse, James E. Biggar, Susan Biggar, Fred Bodnar, Raymond Bozek, Violet Bozek, W. Terrence Breithaupt, Richard Burri, Robert Carroll, Sandra Ceroni, Louis Ceroni, Peter Clarke, Thomas N. Davidson, Werner Dingfeld, Gary Elliott, John Gibson, Bradley Hart, Ruth Hart-Stephens, Harold Higginbottom, Diana Hogarth, Murray Hogarth, R. Laird Jennings, Edward Ksiazek, Jacquelin Levin, Lawrence Levin, Anthony Markowski, Barbara Ann Martin, Gian-Carlo A. Mason, Sean McDonough, David McKee, Thomas S. Medland, Sheridan Montfort, Jay B. Moyer, Murray Nicholson, Murray O'Neil, William H. Overell, George Pakozdi, Peter J. Palmer, Stephen F. Palmer, Jane Perrin, William E. Perrin, Max H. Pickfield, Hal Pringle, Claudius Ramprashad, E.R. Reynolds, Robert L. Robinson, Ernest Romain, Henri Rotsaert, Simone Rotsaert, Paul Saunders, Ruth M. Simpson, Florence Smith, Ian Taylor, Sharon Thibodeau, Brian Timmis, Diana Walker, Keith Walker, John Brian Webster, Garnet Webster, Freda Webster, Neil Webster, Graham Wright, W.M. Young, Mary Lynn Beaven, Michael Head, Sandra Head, and Warren Hurst (plaintiffs (appellants)), and Corporation of Lloyd's and Bank of Nova Scotia, Canada Trust, Canadian Imperial Bank of Commerce, Citibank Canada, Hong Kong Bank of Canada, Royal Bank of Canada and Toronto-Dominion Bank and CT Credit Corporation (defendants (respondents)) And between C. William Ash et al. (plaintiffs (respondents)), and Corporation of Lloyd's et al. (defendants (appellants)) And between C. William Ash et al. (plaintiffs (respondents)), and Corporation of Lloyd's et al. (defendants (appellants))

(5 paras.)

Case Summary

Practice — Costs — Party and party costs — Appeals.

Supplementary reasons with respect to costs.

HELD: Costs throughout were on a party and party scale, with one set of costs on the appeal and one set of costs for the original motions being divided into four with several obligations for payment.

[Quicklaw note: Original reasons for judgment were released July 28, 1992. See [1992] O.J. No. 1585.]

Counsel

Alan J. Lenczner and Glenn A. Smith, for the plaintiffs as appellants and respondents. R. Bruce Smith and Douglas Alderson, for Canadian Imperial Bank of Commerce, Royal Bank of Canada and Toronto-Dominion Canada and CT Credit Corporation as respondents. Martin Sclisizzi, for the appellant, Bank of Nova Scotia. Peter Howard and Marjo MacMullin, for the respondent Corporation of Lloyd's.

The judgment of the Court was delivered by

CARTHY J.A.

1 These reasons are further to those released on July 28, 1992 and in response to written submissions as to costs in this court and on the original motions.

2The banks ask that they be paid costs throughout on a solicitor-and-client basis on the strength of reimbursement agreements signed by the plaintiffs which entitle the banks to recover all expenses in connection with the letters of credit. I agree with counsel for the plaintiffs that these proceedings do not constitute a demand for payment on the indemnity agreements. Their force and effect is not before us and it is not appropriate to apply their terms as if they had been the subject of adjudication on the merits. Costs throughout should, therefore, be on a party-and-party scale.

3As to costs of the appeal, the plaintiffs submit that there should be only one set of costs to the financial institutions and banks as respondents to the unsuccessful appeal as all were represented by one counsel.

4It is further submitted that there should be only one set of costs awarded to the banks on the successful appeal as one factum was filed and counsel split the argument. I agree, and the earlier reasons should be read as amended in these two respects, and also to include the costs of the motion before the Chief Justice of Ontario.

5As to the costs of the original motions there should be no change to the order made on the motion by the Corporation of Lloyd's; the order made on the motion of Bank of Nova Scotia has been varied on appeal to provide for a permanent stay and the costs of the motion and action should be paid to the Bank of Nova Scotia on a party-and-party basis by the plaintiffs named in the order under appeal; the order made on the motion of the financial institutions and banks has been varied in part on the appeal and the provision as to costs in para. 4 of that order should be varied to provide that the plaintiffs named therein shall pay the costs of the motion and action of the three banks on a party-and-party basis. This will result in one set of costs for that motion being divided into four with several obligations for payment.

End of Document