Indexed as:

997724 Ontario Inc. v. 407430 Ontario Ltd.

Between

997724 Ontario Inc. (applicant/respondent), and

407430 Ontario Ltd., Al Katzman Enterprises Ltd., 785097

Ontario Inc., 771976 Ontario Inc. (appellants), and

State Mortgage Corporation et al. (respondents)

[1995] O.J. No. 3523

Court File No. C22087

 Ontario Court of Appeal

 Toronto, Ontario

Houlden, McKinlay and Abella JJ.A.

Heard: October 30-31, 1995.

 Judgment: November 16, 1995.

(2 pp.)

[Ed. Note: The original reasons for judgment were released November 3, 1995. See [1995] O.J. No. 3378.]

Practice -- Costs -- Solicitor and client costs -- Entitlement to solicitor and client costs -- By agreement -- What constitutes -- Debentures.

This was an application to determine costs on an appeal. The debenture in question provided that the holder was entitled to costs in enforcing payment on a solicitor and client basis.

HELD: The application was allowed. The respondent holder was entitled to solicitor and client costs pursuant to the debenture. The other respondents were entitled to party and party costs. The appellants were entitled to costs of the prior motion as awarded to them.

Counsel:

R.G. Colautti and G.A. Campbell, for the appellant, 407430 Ontario Ltd., Al Katzman Enterprises Ltd., 785097 Ontario Inc. and 771976 Ontario Inc.

Mark Goodman and Jeffrey Radnoff, for the respondents, State Mortgage Corporation, International Freehold Financial Services Limited, and Yale Kline Levitsky Feldman Incorporated.

Lorne Silver and Robert Cohen, for the respondent, 997724 Ontario Inc.

The following judgment was delivered by

1     THE COURT (endorsement):-- When we reserved judgment in this appeal, we had not received submissions concerning costs. Subsequent to the release of our reasons, we have received submissions regarding costs from the respondent, 997724 Ontario Inc., and from the appellants.

2     The debenture which was assigned to 997724 provides that the holder shall be entitled to the costs in recovering or enforcing payment of moneys owing under it on a solicitor and his own client basis. Accordingly, the respondent 997724 will be entitled to its costs of the appeal on a solicitor and his own client scale. The other respondents will only receive party and party costs. The costs of the respondents will include the costs of a motion on July 18, 1995 which costs were to follow the event of the appeal. The appellants will be entitled to the costs of the motion of August 10, 1995 which were awarded to the appellants in any event of the appeal. There will be no costs of the motion on October 12, 1995.

HOULDEN J.A.

 McKINLAY J.A.

 ABELLA J.A.

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