Court of Appeal for Ontario
Before: Simmons, Rouleau and Hourigan JJ.A.
Between:
Biljana Beader
Respondent
and
Cory Lloyd Evans
Appellant
Counsel:
Donald G. Martin, Q.C. and Mark Elkin, for the appellant
George O. Frank and Lianne Sharvit, for the respondent
Heard and released orally: September 15, 2014
On appeal from the threshold motion of Justice Mary A. Sanderson of the Superior Court of Justice, dated October 11, 2012.
ENDORSEMENT
1The appellant appeals the threshold ruling and the costs order made by the trial judge in a motor vehicle accident action.
2In his submissions to the court, the appellant’s counsel did not press his client’s appeal of the threshold ruling. This was a sensible approach, as we see no basis to interfere with the trial judge’s well-reasoned decision on that motion.
3With respect to costs, the appellant’s counsel conceded that there is no basis for appellate interference with the trial judge’s award of costs to the respondent in the amount of $135,000 up to the date of the offer to settle made by the appellant.
4The narrow issue before us is whether we should interfere with the trial judge’s decision to depart from the usual costs consequences of a plaintiff obtaining a judgment less favourable than the terms of the offer to settle and award no costs to either party after the date of the settlement offer.
5The appellant submits that the award of the jury was below the amount in the offer to settle and that there are no exceptional circumstances that would justify a departure from the rule. We agree.
6The trial judge’s reasons did not set out grounds that would support her finding of exceptional circumstances, nor, on the facts of the case, do we find that such exceptional circumstances exist. We conclude, therefore, the trial judge erred in principle in departing from the rule.
7In our view, leave to appeal costs order should be granted and the appropriate order is to set aside the award of no costs post-offer of settlement and order costs payable to the appellant in the amount of $70,000, to be set off against the $135,000 awarded to the respondent.
8Given our decision, it is unnecessary to consider the respondent’s motion to quash the appellant’s appeal of the threshold ruling.
9The costs of the appeal will be to the appellant in the amount of $5,000, on a partial indemnity scale, inclusive of disbursements and applicable taxes.
"Janet Simmons J.A."
"Paul Rouleau J.A."
"William C. Hourigan J.A."