DATE: 20060613

DOCKET: C43744

COURT OF APPEAL FOR ONTARIO

RE:

EARL HUTCHINSON, SUSAN HUTCHINSON, and JONATHAN HUTCHINISON, by his Litigation Guardian, Susan Hutchinson (Appellants/Plaintiffs) v. FREDERICK DeVROOM and KRISTA LYNN DeVROOM (Respondents/Defendants)

BEFORE:

DOHERTY, BLAIR and LAFORME JJ.A.

COUNSEL:

Robert Calder

for the appellants

Alan Rachlin and Diana Romano-Reid

for the respondents

HEARD & ENDORSED:

June 8, 2006

On appeal from the judgment of Justice Boyko of the Superior Court of Justice dated June 3, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] Assuming without deciding that the trial judge erred in holding that Dr. Chapnik could not testify without leave because no report was filed, we see no reasonable possibility that his viva voce evidence could have affected the trial judge’s decision on the threshold question. She had the substance of Dr. Chapnik’s evidence in the form of his detailed notes. She found that the appellant was not credible. Hearing Dr. Chapnik testify rather than reading his notes could not have affected her assessment of the appellant’s credibility.

[2] The trial judge awarded costs to the defendant from the date of the offer made by the defendant (respondent). No issue is taken with that part of the costs order.

[3] The trial judge awarded no costs for the proceedings prior to the date of the offer. She gave no reasons for her order. In the absence of any reasons, it falls to this court to decide whether the appellant should have received his costs on a partial indemnity basis prior to the offer. Rule 76.13 applies. The appellant is entitled to his costs only if the court is satisfied that it was reasonable for the plaintiff (appellant) to commence and continue the action under the ordinary procedure.

[4] We are satisfied, having regard to the nature of the claim, the case presented on behalf of the plaintiff and the amounts awarded by the jury, that it was reasonable to do so.

[5] The appellant is entitled to his costs on a partial indemnity basis up to the date of the defendants’ offer. The matter is remitted to the trial judge for a determination of costs in accordance with these reasons.

[6] Success is divided. No costs on the appeal.