Matic et al v Waldner et al, 2018 MBCA 25

Citation: Matic et al v Waldner et al, 2018 MBCA 25 Date: 20180312 Dockets: AI17-30-08906; AI15-30-08321 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Marc M. Monnin Madam Justice Jennifer A. Pfuetzner BETWEEN : ANTE MATIC and MATIC HOLDINGS INC. ) ) (Plaintiffs) Appellants ) ) - and - ) ) J. B. Martens and PAUL WALDNER, WILLIAM WALDNER, ) A. D. Pollock SPRINGHILL LUMBER WHOLESALE ) for the Appellants LTD., BLACK FOREST HOLDINGS LTD., ) PRAIRIE POST FRAME CONSTRUCTION ) LTD., WALCAN HOLDINGS LTD., ) CANAMATIC VENTURES LTD. and CAN- ) AMERICAN CORRUGATING CO. LTD. ) ) J.

A. Kagan and (Defendants) Respondents ) A. D. F. Sain ) for the Respondents AND BETWEEN : ) ) SPRINGHILL LUMBER WHOLESALE ) LTD. and BLACK FOREST HOLDINGS ) LTD. ) ) Motion heard and (Plaintiffs by Counterclaim) ) Decision pronounced: ) March 12, 2018 - and - ) ) ANTE MATIC, MATIC HOLDINGS INC. ) and CALLIDUS CONSTRUCTION GROUP ) LTD. ) ) (Defendants by Counterclaim) ) MONNIN JA (for the Court): Introduction [ 1 ] This matter came before us as a motion to amend a certificate of decision and an appeal from the trial judge’s decision on his jurisdiction on costs.

We granted the motion in part and dismissed the appeal with reasons to follow. These are those reasons. The Motion [ 2 ] By reasons delivered on June 6, 2016, this panel dealt with an appeal and cross appeal from the judgment on the issue of liability in a bifurcated proceeding. The main issue between the parties related to whether there was an agreement between them as to the share ownership of a certain corporation and its newly acquired business.

As well, our reasons dealt with issues of fiduciary duties owed by the parties to certain corporations which they operated, a claim for wrongful dismissal and for the payment of certain goods.

[ 3 ] By our decision, we: (

a) overturned the trial judge on the question of whether there was an agreement, finding one; (

b) overturned the trial judge on the issue of whether the plaintiffs breached a fiduciary duty to the acquired business, holding that they did; and (

c) upheld the trial judge on the remaining issues. [ 4 ] We ordered that the matter return to the trial court for the purposes of dealing with the issues of damages arising from our decision. [ 5 ] As to costs, we only dealt with the costs of the appeal, finding that each party should bear its own costs in light of the divided success before us. [ 6 ] We are now being asked by the plaintiffs to amend the certificate of decision to address the issue of the costs for the liability stage of the trial. [ 7 ] Unbeknownst to the panel, on the same day of the filing of the notice of appeal, the trial judge signed a bill of costs assessing costs in favour of the defendants by consent at $175,000.00 all-inclusive.

As far as the panel was aware, costs of the trial were to be spoken to before the trial judge if the parties could not agree, as set out in the judgment under appeal. [ 8 ] While the notice of appeal requested that the appeal be allowed “with costs”, there was no specific reference in that document, nor in the appeal material or at the appeal hearing, to seeking an order setting aside a bill of costs or varying a costs order made by the trial judge. [ 9 ] The explanation of counsel for the plaintiffs (not counsel at the hearing before us), as set out in the material before us, was that it was their view that costs would follow a successful appeal. [ 10 ] While it is usual for costs to follow success at trial or on appeal, that is not necessarily the case.

Many factors may come into play. It would be prudent for counsel, when filing a notice of appeal, to specifically request that an order for costs or disposition of costs be varied, as is the practice in some other jurisdictions (e.g., Alberta). [ 11 ] We are of the view that, had the existence of the bill of costs in favour of the defendants been brought to our attention, either in the notice of appeal or during the course of the appeal, we would have dealt with it as part of our judgment.

On the unusual facts of this case, we are of the view that it remains a matter for us to adjudicate and we accordingly do so (see r 59.06(1)(

b) of the Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88; and section 36(1) of The Court of Appeal Act , CCSM c C240). [ 12 ] In our view, the circumstances under which the bill of costs was granted, namely, the defendants’ relative success at trial, have changed. We therefore set the bill of costs aside. It would be premature to deal with the issue of the trial costs until the remainder of the trial as to damages is dealt with. The findings on that part of the trial may well affect the assessment and apportionment of the costs for the entire trial.

Accordingly, costs for the entire trial, including that portion dealing with liability, are reserved to the judge hearing the issue of damages. [ 13 ] There will be no order with respect to the monies held in trust as security for costs given that this was not ordered by the trial judge but was subject to an agreement between the parties through their counsel. [ 14 ] Costs of the motion are in favour of the plaintiffs on a Tariff C basis. [ 15 ] An amended certificate of decision should issue in accordance with these additional reasons.

The Appeal [ 16 ] In light of our decision on the motion to amend the certificate of decision to deal with the issue of costs, the appeal from the decision of the trial judge on his jurisdiction to deal with costs is moot. [ 17 ] The appeal is therefore dismissed without costs to either party. JA JA

JA