Gordon S. McSevney

In an addendum on costs following an appeal, the Court of Appeal applied Rule 49.10(2) of the Rules of Civil Procedure.

The appellant (defendant at trial) had made a pre-trial offer to settle that exceeded the quantum of damages ultimately awarded by the court.

Consequently, the respondent (plaintiff) was awarded party-and-party costs up to the date of the offer, and the appellant was awarded party-and-party costs from that date to the conclusion of the trial, as well as the costs of the appeal.

The respondent employee was wrongfully dismissed after refusing to relocate to Ohio.

The trial judge awarded damages based on an 18-month notice period, including $49,293.97 for pension loss, and found the respondent had properly mitigated his damages by starting a consulting business.

The employer appealed the mitigation finding and the pension loss award.

The Court of Appeal upheld the mitigation finding but allowed the appeal regarding the pension loss.

The Court held that the trial judge erred by failing to account for the pension benefits the respondent received during the notice period, which actually increased the overall present value of his pension, and by improperly grossing up the award for tax purposes.